Hate crimes law violates Constitution in two ways

posted at 11:36 am on May 1, 2009 by Ed Morrissey

The House passed sweeping new hate-crimes legislation this week, helped in no small part by a Republican rhetorical fumble during the debate, although the outcome was hardly in doubt. Sponsors named the bill after Matthew Shephard, who was beaten and left to die tied to a fence. Virginia Foxx (R-NC) called the bill a “hoax”, and mischaracterized the crime:

This is absurd on two levels. First, the defendants in the case tried using for a “gay panic defense,” arguing that Shephard had initiated sexual advances and that they went insane when their masculinity was challenged.  The walkback from that led the defendants to claim that the beating was a result of a robbery gone awry and that they had no intention of causing that level of harm.  The jury didn’t buy either excuse, and both defendants have back-to-back life sentences (one defendant eventually pled guilty and testified against the other).

The second absurdity is that even if one accepted that this particular case involved no animus against gays, undeniably people commit crimes based on that animus as well as a range of others.  The animus exists, and can be seen in a variety of criminal and non-criminal acts.  The question, which Foxx eclipsed with this sorry performance, is whether we want to start criminalizing thoughts as well as actions.

Until recently, motives only mattered in proving the mens rea of a crime, ie, the desire to commit the crime.  Motive matters in murder, for instance; a drunk driver can kill a pedestrian and a person can kill a spouse to collect on the insurance.  Both happen with depressing regularity.  The difference is that the latter had an explicit desire to kill (for profit) while the other had a depraved indifference to life but no explicit desire to kill, and that’s why they get charged with different crimes.

However, we don’t differentiate between murder for profit and murder for a particular animus of hate.  Doing that creates a subtle but significant change in which the state has suddenly become the arbiter of thought, determining different outcomes based on thought despite the similarity of crime.  The First Amendment arguments are obvious, but Jazz Shaw thinks this also violates the Fourteenth as well:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Long story short: When you pass laws which assign greater guilt to certain parties for committing the same crimes, based on nothing more than what they were thinking at the time and the “class” of citizens who were the victims, then you are providing unequal protection of the laws. You are assigning a higher value to the lives, liberty and property of some victims than others based on their sexual orientation, their race, skin color, religion, etc.

That’s exactly right — and, in fact, that’s the explicit desire of lawmakers.  They want to alleviate what they see as a greater degree of victimhood with a greater degree of government correction.  Those motives may be understandable, but they’re entirely incompatible with equality before the law.  Creating classes of victims means creating classes of citizenry.  Either we’re all the same, or we’re just competing for the most politically-correct biases. That’s more likely to perpetuate resentment than it is to reduce hatred.

The key to fighting crime is to prosecute aggressively and apply long sentences, especially to violent and repeat offenders, no matter who they are or whom they victimized.

Jazz and I discussed this on his show yesterday. I come in at the half-way mark:

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Hate crime laws are NOT Constitutional! I agree 100% with the assertion that the violate the 1st and 14th Amendments.

azcop on May 2, 2009 at 2:58 PM

The first thing every totalitarian government does when it finally achieves it’s goals is to get rid of those who were their “useful tools”.

Why do they do that?

Their “useful tools” think that they will be rewarded for their services to the party and the Dictator/Furher/messiah and will become unruly when it becomes apparent that they have been lied to and the only reward they will get is to be kicked to the curb with the rest of the serfs.

So the party will nip that in the bud and throw their “useful tools” into the fire first.

I told the 0bamaorcs last year that they need to study up on Ernst Rohm, the SA and “The Night of the Long Knives” because that will be their fate.

We see this in action when feminists attack a young white woman who expresses the SAME belief President Obama expressed.

Amazing how “suicidal” the left has become.

Roy Rogers on May 2, 2009 at 3:00 PM

Loxodonta on May 1, 2009 at 3:35 PM

I’m listening to Ralph’s lark now.

maverick muse on May 2, 2009 at 3:20 PM

You must actually be the village idiot. If what I have said (nice cherry picking there, libtard) stings then it is only because I have struck a nerve and you know I’m speaking the truth. Deal…..

And no – we won’t talk. Libtards are boring…..

vapig on May 1, 2009 at 3:08 PM

vapid, you do the_village_idiot injustice–catch that poster sometime. He makes great points.

maverick muse on May 2, 2009 at 3:25 PM

Here is a link to the FBI 2007 hate crimes statistics.


SC.Charlie on May 2, 2009 at 3:44 PM

It comes down to a very basic belief: Either you believe that some groups deserve more protection under the law or you believe that we are all equal under the law.
If you are of the first persuasion then the only argument is what groups to include.

Regardless of belief, every American citizen IS equally protected under the law.

Anyone who wants more than that must go build their own nation somewhere else; not here. They have no right to infringe on our Constitution and Bill of Rights.

The moral of the story: don’t discriminate against anyone and treat everyone equally.

dpierson on May 1, 2009 at 4:22 PM

The moral of the story: don’t discriminate INDISCRIMINATELY and treat everyone equally.

/Otherwise, I agree.

maverick muse on May 2, 2009 at 3:48 PM

And how can you even support making a citizen prove such a thing when it’s not illegal to be so?

Esthier on May 1, 2009 at 3:53 PM


Also, a citizen is presumed innocent until proven guilty in a court of law. We already have the laws. Double dosing just to appease radicals is as wrong as not applying the law. Finally, the point that every idiot misses out of self righteous delusion is that our inner selves are not public property or property of the state to be coerced. To argue otherwise is to prove your evil intent to enslave the mind and hence the life of another.

maverick muse on May 2, 2009 at 3:56 PM

Socialists are cannibals.

maverick muse on May 2, 2009 at 3:57 PM

maverick muse on May 2, 2009 at 3:57 PM

I believe I’ve seen some cannibalizing by conservatives at Hot Air. In fact, I think I was barely able to avoid being put eaten alive in this thread.

Loxodonta on May 2, 2009 at 4:11 PM

This is simply the Democrat party pandering to its base.

pgrossjr on May 2, 2009 at 8:52 PM

What punishment it there that is more severe than either life without parole or the death penalty?

Waterboarding because it sure is not getting shot in the head as we saw in the Pirate standoff.

Jamson64 on May 2, 2009 at 9:03 PM

Maybe the Miss USA loser should use this law to prosecute the likes of Perez Hilton and his ilk for their HATE speech attacking her!

hopefloats on May 3, 2009 at 2:39 AM

Maybe the Miss USA loser should use this law to prosecute the likes of Perez Hilton and his ilk for their HATE speech attacking her!

hopefloats on May 3, 2009 at 2:39 AM

In my book Miss California was a winner in every way that matters. Those that attacked her are total losers in every way that matters.

old trooper2 on May 3, 2009 at 4:29 PM

I hate, hate crimes legislation.

44Magnum on May 3, 2009 at 7:51 PM

Punish the crime, not the thought.

Anything else is a Pandora’s box that once opened will lead this nation from a “soft tyranny” as Mark Levin puts it to a tyranny that WILL lead to the destruction of this nation faster than any of Obama’s disastrous fiscal and foreign policy decisions.

Yakko77 on May 4, 2009 at 12:09 AM

Thought crimes. What will the punishment be for unlawful sexual fantasizing be?

darktood on May 4, 2009 at 3:36 AM

Whether or not you are in favor of hate crimes legislation, the analysis should be accurate. The analogy in this article is not accurate. The fact is that we do differentiate between different types of murder (which is assigning different sentences to the same crime). For example, first degree murder is premeditated while second degree murder is not. They are still the same crime, i.e., murder, but we look at whether the person thought, planned, etc. before killing the person. Oddly, you got it wrong on another count — motive is not an element of a crime. You have mixed up intent with motive. Intent is whether you wanted someone dead. Motive is why. Motive can help establish why someone did something and, therefore, whether they had the intent to kill but you definitely do not need to prove motive to prove intent.

MyriadScreed on May 4, 2009 at 4:56 PM