Balkinization  

Thursday, May 03, 2007

The Amended Hate Crimes Act Would Be Constitutional

Marty Lederman

The House today passed the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Bush Administration has threatened a veto if the Senate also passes it.

Under current federal law, violent crimes are subject to federal penalty if they are (i) motivated by the race, religion, color or national origin of the victim and (ii) the victim was engaged in a "federally protected activity," such as voting.

The central provision of the new Act (section 7(a)) would expand that law in two respects, by creating two distinct new federal crimes denominated "hate crime acts."

First, new section 249(a)(1) of title 18 would eliminate the current requirement that the victim be engaged in federally protected activity. It would simply criminalize willfully causing bodily injury because of the actual or perceived race, color, religion, or national origin of the victim.

Second, new section 249(a)(2) would, in turn, expand the current prohibition to cover violent crime motivated by other characteristics of the victim: It would criminalize willfully causing bodily injury because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of the victim under specified circumstances.

Upon seeing news of this today, two of my ConLaw Students asked me what Congress's authority to enact this statute might possibly be. Funny they should ask . . . . As it happens, when I worked at the Department of Justice back in 2000, several of my OLC colleagues and I -- including my current colleague Vicki Jackson and Professor Gia Lee (UCLA Law) -- helped to draft this version of the proposed section 249 crimes (the 2000 version and the 2007 version are materially indistinguishable); and, more importantly, we in OLC were principally responsible for DOJ's constitutional defense of the bill, which can be found in a DOJ Letter at pages 16-23 of this Senate Report.

That 2000 DOJ letter speaks for itself, and I won't repeat all of its arguments here, except for the following summary.

Most of the recent constitutional doubts about the bill, such as those that Dale Carpenter has raised over at the Volokh Conspiracy, concern Congress's authority to enact section 249(a)(2), which proscribes violence motivated by gender, sexual orientation, gender identity or disability. As we explained in our 2000 letter, the prohibition in section 249(a)(2) would not apply except where there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce, a connection that the Government would be required to allege and prove in each case. These "jurisdictional" commerce "elements" in section 249(a)(2)(B) would ensure that each conviction would involve conduct that Congress has the power to regulate under the Commerce Clause. (Any readers who are interested in this somewhat arcane (but potentially significant) "jurisdictional element" aspect of Commerce Clause jurisprudence can find more at pages 19-27 of this brief.)

It is notable, however, that the Bush Administration apparently agrees with this Commerce Clause theory, because it does not raise a constitutional concern about section 249(a)(2). Instead, the Administration's only expressed constitutional concern involves subsection 249(a)(1), which prohibits race-, religion-, and national-origin-based violence without the requirement of any connection to interstate commerce. The Statement of Administration Policy explains that this prohibition "would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws. Section 249(a)(1) is not by its terms limited to the exercise of such a power, and it is not at all clear that sufficient factual or legal grounds exist to uphold this provision of H.R. 1592."

The short response to this objection is that the Bush Administration has entirely ignored DOJ's previous argument (see pages 16-18 of the 2000 Senate Report) that section 249(a)(1) is authorized by Congress's power under section 2 of the Thirteenth Amendment to ensure that none of the "badges," "incidents" and "relics" of slavery or involuntary servitude exists in the United States. See Griffin v. Breckinridge, 403 U.S. 88, 105 (1971); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–43 (1968).

[NOTE: The drafters of the bill included religion- and national-origin-based violence in both subsections, because the Thirteenth Amendment argument might not be adequate to cover application of section 249(a)(1) to certain cases of such forms of discriminatory violence.]

Comments:

it is at all problematic that as applied that jurisdictional element would cause crimes with the same motivation and effect but differing in having some immaterial relation to interstate commerce to be treated divergently. i can see a justification for travel across state lines because that is utilizing a federally guaranteed privilege but i dont know how far that should go, and judging the materiality of the interstate commerce connection to the crime strikes me as difficult.
 

Could you tell us what the jurisdictional element means in practice? What kind of situations trigger it and don't trigger it?
 

This comment has been removed by the author.
 

The idea that this president has suddenly become a defender of federalism is laughable -- "NCLB" or "Gonzales v. Raich," anyone?

The Statement of Administration Policy notwithstanding, the only two words Bush has a problem with in HR 1592 are "sexual orientation."
 

kipesquire:

[T]he only two words Bush has a problem with in HR 1592 are "sexual orientation."

To paraphrase another wag, I was guessing that the first two words there that Dubya had a problem with were "and" and "the".
 

jr: See pages 21-23 of the 2000 Senate Report.
 

To clear up my prior comment (as much as possible):

I think Dubya's threat to veto stems more from a childish impulse to give the middle=finger salute to what he perceives as his tormentors, rather than any principled understanding of what he's threatening to veto. He may in fact understand "and" and "the". It simply played no part in his decision.

Cheers,
 

As ever, I marvel at how little what's 'constitutional' has to do with what the Constitution actually says. You'll search in vain to find any references to '"badges," "incidents" and "relics" of slavery' in the 13th amendment. And to make a federal crime out of beating somebody up in 2007 under the pretext that it's necessary to prevent a return of slavery is a stretch the finest latex, let alone the Constitution, could never survive.

Let the states do this, if it's really necessary. Not everything that's good has to be done by the federal government.
 

Brett:

Let the states do this, if it's really necessary.

Been there, done that. Check out the '40s and '50s....

I'd note that the "state's rights" mantra of the RWers is rather selective (as well as suspect in pedigree); the RWers want nothing more than to tell progressive states like Oregon and California what to do, when it comes to matters of real morality, as opposed to bigotry and racial discrimination.

Cheers,
 

I don't see the 13th amendment argument. Wouldn't the statute have to be limited to crimes against BLACK people for that argument to fly? In practice, these types of statutes end up being applied against black perpetrators more than they are applied to crimes involving black victims.
 

You'll search in vain to find any references to '"badges," "incidents" and "relics" of slavery' in the 13th amendment.

Sure, but the "badges and incidents" phrase goes back to the time of the Amendment itself. Surely any originalist would consider that when interpreting Congressional authority.
 

Arne, quite aside from the fact that I purely despise the sort of sophistry necessary to pretend that laws like this are constitutional, and think it is highly corrosive to the legitimacy of the legal system, it seems clear that federal hate crime laws exist specifically to enable the sort of second bite at the apple that the constitutional prohibition against double jepardy exists to prevent.

The argument that it's constitutional is specious, and it's a bad law, motivated by, ultimately, a desire to circumvent a basic constitutional protection. I see no redeeming aspects to it at all.
 

The article refers to 'violent crimes' in describing the hate crimes statutes, but the law states a hate crime can arise from a person who "by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with" a protected class.

Doesn't this language suggest an act not necessarily be violent to be considered a hate crime?
 

Marty, is the reason that it's not based on Section 5 of the Fourteenth Amendment simply a recognition that there aren't five votes for a robust (and correct) reading of Section 5 these days? Perhaps there is an interstate commerce argument, but it surely what Marshall meant by "pretext" in McCulloch. I presume the IC argument "works" only because the Court in Darby completely renounced pretextual analysis of what may well be described as "national police power" statutes.
 

Sandy: If I recall correctly, the reason no one invoked section 5 was because the statute deals with private discrimination -- and Morrison, alas, (wrongly) revivified the holdings of Harris and the Civil Rights Cases to the effect that section 5 can't be used with respect to private discrimination (even where, as in Morrison, the states themselves did not adequately address such private discrimination).

So, yes, it's because not only aren't there five votes going forward for a robust (and correct) reading of Section 5; but there also weren't five votes in a recent, binding holding of the Court. (By contrast, cases such as Griffin and Jones do support the reliance on section 2 of the Thirteenth Amendment, even though it is well-nigh inconceivable that the current Court would decide those cases the same way today as a matter of first impression. The contrast does nicely demonstrate, however, the important tension between the Court's section 2 jurisprudence (established largely in the Warren Court) and its current, much stingier reading of section 5.)
 

The Supreme Court's Morrison decision got the federalism-based limits on Congress's power to enforce the Fourteenth Amendment exactly right, in light of the Fourteenth Amendment's legislative history.

And under Morrison you can't have a general federal hate crimes law, whether it's gender (as in Morrison), religion, sexual orientation, etc.

That makes part of section (a)(1) unconstitutional.

Another part of (a)(1) -- that dealing with race as opposed to other characteristics -- may be OK under Jones v. Alfred H. Mayer Co. (1968).

But as the Morrison district court observed, cases like Jones v. Alfred H. Mayer Co. involve racial discrimination, and even private racial discrimination can often be banned by Congress under the Thirteenth Amendment. See Brzonkala v. Virginia Polytechnic Institute.

But as the Morrison district court observed, with the exception of slavery, the Thirteenth Amendment only applies to racial discrimination, not other kinds of discrimination, like gender or sexual orientation discrimination.

Trying to ban other forms of discrimination under the Thirteenth Amendment is a loser, as the Justice Department recognized from its litigation strategy in Morrison.

Adding in a jurisdictional element can allow Congress to reach some gender or sexual-orientation-based hate crimes, but the jurisdictional element in section (a)(2) doesn't meaningfully limit the reach of the statute.

As Chief Judge Becker once observed, jurisdictional elements that do nothing to limit the reach of a statute are meaningless and cannot be used to reject a commerce-clause challenge to the statute.

The Supreme Court suggested as much in its decision narrowing the reach of the arson statute in Jones v. United States.
 

We address Hanw's arguments in our 2000 DOJ Letter.

Hans, subsection (a)(1) -- the Thirteenth Amendment provision -- only reaches racial discrimination or other forms of discrimination based on characteristics that were viewed as "race" at the enactment of the Thirteenth Amendment. In other words, it only includes those forms of discrimination that are covered under 42 USC 1981 and 1982.

For gender-, sexual-orientation- and disability-based discrimination (and religion-based discrimination not equivalent to race discrimination), the government would have to prove a connection to commerce as described in subsection 249(a)(2).
 

Section (a)(1) includes not only race, but also other categories, like religion, without even any nexus to interstate commerce. That is constitutionally very problematic.

Religion-based hate crimes can't be banned under the Thirteenth Amendment, unlike race.

Of course, sometimes the line between race and religion is blurry, as in the case of anti-semitism.

Anti-semitic hate crimes can be banned under Thirteenth Amendment legislation because anti-semitism targets Jews as a race, not just as a religion, in the eyes of the framers of the Thirteenth Amendment, who thought (contrary to prevailing views today) that Jews were a distinct race. See the Supreme Court's Shaare Tefila decision, construing anti-semitism to fall under the 42 USC 1981 and 1982 provisions which ban on racial discrimination.

(Moreover, Hitler's hatred of Jews certainly was racist in nature; even Christian Jews were targeted by him for murder).

But that is not true for other religions. Antipathy to Scientology or Catholicism is not motivated by any racial animus, and can't be reached through the Thirteenth Amendment, which generally reaches only racial discrimination.
 

I'd point out that the Thirteenth Amendment does not in fact refer to race at all. It therefore invites us to reflect on what constitutes "slavery" or "involuntary servitude." As Akhil Reed Amar and Daniel Widawsky argued in a typically audacious article, "A Thirteenth Amendment Response to DeShaney," 105 Harv. L. Rev. 1359 (1992), one could certainly analogize certain kinds of "family tyranny," whether over children, as in DeShaney, or spouses, as an equivalent to "slavery." To put it mildly, there is no reason to believe that there are five votes for the Amar-Widawsky analysis, but that discredits the Court more than it does Amar and Widawsky, just as is the case with the disgraceful citation of post-Reconstruction cases to eviscerate the promise of Section 5 of the Fourteenth Amendment.

For the record, I don't know if Amar would extend the analysis in that article to "hate crimes" based on sexual orientation, though I'm confident he'd do so under Section 5 of the Fourteenth Amendment.
 

Hans: Please go and read our 2000 letter. We recognized and addressed precisely the issue you raise. Here's what we wrote:

The question whether Congress may prohibit violence against persons because of their actual or perceived religion or national origin is more complex, but there is a substantial basis to conclude that the 13th amendment grants Congress that authority, at a minimum, with respect to some religions and national origins. In Saint Francis College v. al-Khazraii, 481 U.S. 604, 613 (1987), the Court held that the prohibition of discrimination in section 1981 extends to discrimination against Arabs, as Congress intended to protect "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." Similarly, the Court in Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987), held that Jews can state a claim under 42 U.S.C. 1982, another Reconstruction-era antidiscrimination statute enacted pursuant to, and contemporaneously with, the 13th amendment. In construing the reach of these two Reconstruction-era statutes, the Supreme Court found that Congress intended those statutes to extend to groups like "Arabs" and "Jews" because those groups "were among the peoples [at the time the statutes were adopted] considered to be distinct races." Id; see also Saint Francis College, 481 U.S. at 610–13. We thus believe that Congress would have authority under the 13th amendment to extend the prohibitions of proposed section 249(a)(1) to violence that is based on a victim’s religion or national origin, at least to the extent the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the 13th amendment. [Footnote: In light of the Court’s construction of sections 1981 and 1982 in Shaare Tefila Congregation and St. Francis College, it would be consistent for the Court so to construe this legislation, especially with sufficient guidance from Congress.]
 

Brett:

Arne, quite aside from the fact that I purely despise the sort of sophistry necessary to pretend that laws like this are constitutional, and think it is highly corrosive to the legitimacy of the legal system, it seems clear that federal hate crime laws exist specifically to enable the sort of second bite at the apple that the constitutional prohibition against double jepardy exists to prevent.

The argument that it's constitutional is specious, and it's a bad law, motivated by, ultimately, a desire to circumvent a basic constitutional protection. I see no redeeming aspects to it at all.


When I'm interested in your definition of "sophistry" and your opinion of what is specious, I'll send you an e-mail.

If we want to look at more conventional definitions of sophistry, we might examine your specious claim that "hate crime" laws constitute a "second bite at the apple"; something that would be banned under the prohibition against double jeopardy. But there's really no point.

Cheers,
 

Marty --

Any notion of what it really means, in practice, for a federal prosecutor to prove that a particular crime "affects" interstate commerce in the broad sense? What precisely needs to be shown to meet that element?

And I have to say, the asserted motivation to prevent the badges of "slavery" -- in 2007 -- is simply not believable. I wonder if we wouldn't be better off with a "Congress can regulate anything" clause in the Constitution; we'd probably have pretty much the same set of federal laws as we do now, but the proponents of the laws wouldn't be forced to say absurd things in order to justify the constitutionality of the laws.
 

Sorry guys but the entire concept of a "hate crime" in bogus. Where do you get off by Criminalizing a "motive" rather than an "action".

So if someone shoots my daughter, its less of a crime than them shooting the gay dude next door - is this your premise?

Well, shooting someone for their car is just as nonsensical. But are you going to punish them more cause its a stupid idea.

The only people that the "motive" is relevant to is the police when looking for a suspect.

After that the crime is the crime.

I thought both of the dudes in the Matthew Shepherd incident got life sentences for murder. What is it you are going to add to this?

The new text in this could end up being spread to the level of the EU's new terrible "hate" crime nonsense. You have people in jail now for 3 years cause they used the word "immigrant" in a disparaging way. They were protesting high immigration...and are now in jail for "offending" the poor illegals.

That is the dangerous part. Not that someone is going to get away with killing someone.
Utter nonsense.
 

I put aside the religious (though Arabs/Jews raise different issues than Methodists) and racial aspects of the law. Hans raises the point, one that honestly, the citation of the opinion doesn't fully answer.

The controversy arises from the sexual orientation aspects. Since I think the matter intimately connected to sex/gender, these two groups can be connected.

Anyway, a look at the actual law ... as compared to some of the discussion of it ... suggests the possibly narrow nature of the matter. As one person noted, what exactly is a seminal case where "interstate commerce" would arise in this context? Acts arising from employment? On trains?

A glance at the law suggests Congress might want to interpret that broadly. This just won't work ... the fact some might dislike the ruling (I was no fan of DeShaney either) notwithstanding ... under Morrison. The law also suggests only a very narrow range of cases (e.g., see the reference to if a state opposes involvement) will be touched.

Honestly, since this nuances of the matter is confusing, this seems a worthwhile issue for further analysis -- the race/rel. issue focused upon here is in effect the easy part. Overall, some commentary suggests this is just a hate crime bill. It's not. It's more narrow.

On that point, I do wonder -- what is the value of a federal law of this sort? I assume some think of heinous acts like Matthew Shephard when this sort of thing arises. I honestly see that as a state issue primarily.

If state inaction (DeShaney) arises or some other state connection, or federal right (employment regulation is fitting here, given the interstate commerce hook), fine.

But, overall "Could you tell us what the jurisdictional element means in practice? What kind of situations trigger it and don't trigger it?" holds true.
 

"we might examine your specious claim that "hate crime" laws constitute a "second bite at the apple";"

My claim was specifically with regards to federal hate crime legislation. And it's not a particularly absurd claim. See, for instance, Nat Hentoff on the subject.

As you're well aware, the courts have basicly gutted the double jeopardy clause by allowing state and federal prosecutions of the same act. ANY time you enact a federal law which covers an act already illegal at the state level you're generating an oportunity for double jeopardy violations.

I am, without exception, opposed to federal laws against acts which are already crimes under state law. If you want a law to deal with biased decisions not to prosecute on the state level, go after the prosecutors. That much I think you quite easily could justify under the 14th amendment.
 

A look at the White House statement leads me to add a few words.

"The Administration favors strong criminal penalties for violent crime, including crime based on personal characteristics, such as race, color, religion, or national origin."

Hmm. What is left out here?

I note that the statement references the core pt of this post only briefly (see end of statement). It also suggests a policy concern that there is no need for such legislation.

And, a generalized concern [though Wisconsin v. Mitchell seems to make it not one constitutionally bound under current precedent, cf. The Bank Veto of Andy Jackson] of only have certain categories as protected hate crimes (Andrew Sullivan is also against the policy, but not singling out gays for no protection, which is in effect inequitable the other way).

Anyway, "ANY time you enact a federal law which covers an act already illegal at the state level you're generating an oportunity for double jeopardy violations."

Justice McLean in the 19th Century had this concer, but there are SOME crimes that have federal interests at heart where a federal law makes sense, if not a federal prosecution once a state one was adequately carried out.

I assume a state can pass a law banning beating up postal employees in state parks etc. A fed law can be passed covering the same category as well. Sometimes both sovereigns have interlocking interests.
 

"I assume a state can pass a law banning beating up postal employees in state parks etc. A fed law can be passed covering the same category as well."

Why? Are postal employees better than the rest of us? State justice isn't good enough for them? I really don't understand this conviction that you don't take something seriously unless you're willing to pass a federal law against it.

No, there are matters that are inherently federal. Beating somebody on the head with a tire iron, unless it occurs on federal property, or specifically to obstruct a legitimate federal responsiblity, (Attacking a postal employee to obstruct the mail might well qualify as a federal matter.) is not among them.
 

The federal government has an interest in protecting its workers. Is this an implication they are "better" than us? [Your desire to treat beating up the President with the same penalty as the rest of us is duly noted btw.] Or, that we only take things seriously when there is a crime against it?

But, fine. I don't see why a state cannot pass a law against beating up postal employees on their route. States have an interest in not having their citizens worrying about watching violence on public throughways, esp. in residential areas where kids and others more at risk (hint: not "better") people reside.

[WHY the person attacks the postal employee doesn't seem to matter here given the interest at hand.]

The federal gov't also has an interest in such cases. Each sovereign having separate interests need not wait until the other decides to prosecute to protect their interests. In fact, this would cause federalism problems.

Double jeopardy might arise if both gov'ts attack the same act separately. So, my proposal is one bite at the apple.
 

The federal government has plenty of "interests". A government of enumerated powers, operating under the rule of law, requires a bit more than being interested in a topic to justify legislating on it. Like maybe an actual grant of authority in the area?
 

This debate about postal workers is interesting because it was one of the first examples raised in defense of "inherent powers". If we take the text of the Constitution literally, Congress has no power to pass any criminal law whatsoever, except for treason (by inference) and "piracies and felonies committed on the high seas, and offences against the law of nations".

Notwithstanding, the US has had a criminal code since the very beginning. It seems fairly obvious, for example, that if Congress has sole power to coin money (which it does), it must be able to punish counterfeiting. If it has power to establish a post office and post roads, it must have power to punish crimes committed which interfere with those powers. That, at least, has been the argument since Day 1 and even the most adamant proponents of limited powers (e.g., Jefferson) never tried to repeal those criminal statutes.
 

Brett himself noted "Attacking a postal employee to obstruct the mail might well qualify as a federal matter."

So, I gave a hypo doing just that to reaffirm my point. He avoided it to attack my use of "federal interest." This avoiding a possible area of agreement to continue snarky disagreement is a fairly usual technique.

As to 'federal interest,' I replied to the comment about something being "inherently federal." Yes, I thought the fact it was attached to a federal power was implied. My bad.

See MF, but yes, I think it is "necessary and proper" in various cases to pass laws that protect federal employees. It is "legitimate."

This ends my part in this tedious business.
 

Mark, you forgot that Congress can enact laws on the same basis as a state, for federal land.

Joe, and this is not a law concerning federal employees, or interference with the post office, or anything the Constitution grants the federal government an "interest" in. Prohibiting assault of ordinary citizens is the prototypically state matter. Which the federal government legislates on for no other reason than to have the opportunity to commit double jeopardy.

Bad law, for a bad motive.
 

Mark, you forgot that Congress can enact laws on the same basis as a state, for federal land.

I didn't forget that, I just considered it a separate issue. For example, counterfeiters may, and most likely do, operate exclusively on state land, yet the feds surely have the power to criminalize that conduct.

Joe, and this is not a law concerning federal employees, or interference with the post office, or anything the Constitution grants the federal government an "interest" in.

Except that Congress tied this crime to "interstate commerce", something it does have an "interest" in. Now, I understand that you believe the courts have expanded that power too far, so let's take an example that may be easier. Do you believe that Congress has power to prevent such assaults on airplanes (interstate, of course)? How about a ferry boat from NJ to NY? If you do agree with these examples, then your real dispute is with the extent of commerce clause power, not with the crime itself.
 

mrbill:

Sorry guys but the entire concept of a "hate crime" in bogus. Where do you get off by Criminalizing a "motive" rather than an "action".

"Motive" is an essential element of a number of crimes ["assault with intent to kill", for enstance]. It's the essence of mens rea.

Cheers,
 

brett:

[Arne]: "we might examine your specious claim that "hate crime" laws constitute a "second bite at the apple";"

My claim was specifically with regards to federal hate crime legislation. And it's not a particularly absurd claim. See, for instance, Nat Hentoff on the subject.


There are various crimes that are both illegal under federal and state law, and for which one may be tried under both for the same acts without violating the "double jeopardy" prohibition.

Cheers,
 

Public Advocate demonstrates in Washington, DC, protesting the Local Law Enforcement Hate Crimes Protection Act (H.R. 1592), which would grant special rights to homosexuals. This law would add sexual orientation to federal hate crimes statutes.

Watch Teletubby and Moses get arrested at the Capitol while angry bystanders demand the release of the purple teletubby, the "moral fiber of America." See Public Advocate activists hit the streets with this street theater demonstrating against Ted Kennedy's Thought Control Bill to give homosexuals special privileges: http://publicadvocateusa.org/
 

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