New! The Last Hurrah for "Hate Crimes"     12/6/2007
By Dale Austin

Contrary to ACLU claims, U.S. v. Bledsoe demonstrates problems with

In a July 13 letter to the Senate, the ACLU argued that a 1984 Civil Rights case, U.S. v. Bledsoe, supports the need for expanded "hate crimes" legislation.¹ In reality, the case clearly demonstrates some of the greatest problems attending such legislation, including the question of its constitutional basis.

In Bledsoe, the defendant went to a public park and assaulted two men he suspected of homosexuality. He allowed a white man to escape after a beating, but he bludgeoned the black man to death. The case was successfully prosecuted under federal "hate crime" legislation of 1968 because of specific criteria for jurisdiction: the court held that under 18 U.S.C. § 245, the defendant 1) intended to interfere with his victim's use and enjoyment of a facility administered by the government (in this case, a city park) and; 2) the defendant intentionally chose his victim by race. Both elements were essential for federal jurisdiction.²

Because the discrimination was inflicted by an individual and not by the state, the court in Bledsoe found additional support for federal jurisdiction on the basis of the 13th Amendment. "Nor can there be any doubt that interfering with a person's use of a public park because he is black is a badge of slavery."³ Under the existing federal law, a "hate crime" must occur when the victim is participating in those designated areas of federal activity protected in § 245. As held in U.S. v. Nelson, two elements are always present:

First, a motive or an animus against the victim on account of her race,

religion, etc., that is, her membership in a class or category the statute

protects; and, second, an intent to act against the victim on account of

his or her using public facilities etc, that is, of his or her engaging in an

activity that the statute protects.⁴

Those protected areas include, but are not limited to:

1. Enrolling in or attending any public school or public college;
2. Participating in or enjoying any benefit, service, privilege, program,
facility or activity provided or administered by any State or subdivision thereof;
3. Applying for or enjoying employment, or any perquisite thereof, by any private employer or any agency of any State or subdivision thereof, or joining or using the services or advantages of any labor organization, hiring hall, or employment agency;
4. Serving, or attending upon any court of any State in connection with possible service, as a grand or petit juror;
5. Traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air;

The proposed "hate crimes" bill intends to expand this scope to include crimes against gender-defined categories and seeks to include victims who were not engaged in these narrowly restricted activities at the time of the crime. Because of this, the legislation proposed by Senator Ted Kennedy (D-Massachusetts) (S. 1105) has added a jurisdictional hook under the Commerce Clause. This is an attempt to ascribe substantial effects on interstate commerce resulting from individual "hate crimes." The convoluted rationale goes like this:

1. Targeted groups are forced to move across state lines to avoid attack or are prevented from moving across state lines because of attack
2. Targeted groups are kept from buying goods and services or seeking employment because of "hate crimes"
3. Perpetrators and/or weapons cross state lines as part of "hate crime" activity.⁵

The Supreme Court ruled on the constitutional limits of the federal government in the prosecution of criminal activity in United States v. Morrison 529 U.S. 598 (2000). It held that § 13981 of the Violence Against Women Act, which provided for a federal remedy for victims of gender-motivated violence, could not be sustained under the Commerce Clause; gender-motivated crimes were non-economic criminal activities which could not - even by aggregated impact - logically justify extension of federal authority into an area of traditional state authority.⁶

[S]imply because Congress may conclude that a particular activity

substantially affects interstate commerce does not necessarily make it

so. Rather, [w]hether particular operations affect interstate commerce

sufficiently to come under the constitutional power of Congress to

regulate them is ultimately a judicial rather than a legislative question,

and can be settled finally only by this Court.⁷

In Morrison, Chief Justice Rehnquist described three areas in which Congress could legitimately engage the Commerce Clause:

1. Congress may regulate the use of the channels of interstate commerce.
2. Congress is empowered to regulate and protect the instrumentalities of interstate commerce.
3. Congress may regulate those activities having a substantial relation to interstate commerce or substantially affect it.⁸

The proponents of the "hate crimes" legislation justify the link to the Commerce Clause through this third channel. The rationale behind the specious assertions in Section 2 (6) of S. 1105 maintains, for example, that "hate crimes" are preventing interstate travel and promoting interstate travel at the same time. However, as Chief Justice Rehnquist explained:

Gender-motivated crimes of violence are not, in any sense of the phrase,

economic activity. While we need not adopt a categorical rule against

aggregating the effects of any noneconomic activity in order to decide

these cases, thus far in our Nation's history our cases have upheld

Commerce Clause regulation of intrastate activity only where that

activity is economic in nature.⁹

To claim that Congress has the right to prosecute new "hate crimes" because of their impact on interstate commerce is a stretch of logic which seems awkward - even to proponents of "gay rights." University of Minnesota law professor, Dale Carpenter wrote:

It has always struck me as odd to think that a Court concerned with

preserving a historic balance between federal and state power, and

with limiting federal commerce authority largely to the regulation of

"economic" matters, would be won over by a requirement that, say,

the weapon used in the offense moved at some point across state lines.¹⁰

The Link to the 13th Amendment

An effort is included in this proposed legislation to make a link to the "relics of slavery" language of the 13th Amendment. This would give a sound legal footing to acts by individuals being prosecuted in federal court "at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments to the Constitution of the United States."¹¹

In June 2000, following the Morrison decision, Senator Kennedy received a letter from the Assistant Attorney General with an analysis of the constitutionality of a "hate crimes" bill which would include language similar to the one now under consideration. In it he was told that:

1. Congress has power under the 13th Amendment to define the badges and incidents of slavery and the authority to translate that into legislation.
2. Congress would then have the power to impose liability for State action and also for private action.
3. That power would extend to violence that is based on a victim's religion or national origin, at least to those of Jews and Arabs, as they were considered races at the time of the adoption of the 13th Amendment.
4. Congress has authority under the 13th Amendment to prohibit private actions which is a badge, relic, or incident of slavery.¹²

It is perhaps interesting to note that in the Kennedy bill, Section 2 (7) (8) refers to the "badges, incidents, and relics of slavery" and the 13th Amendment. As an aside, the language justifying the constitutionality of "hate crimes" legislation using the Commerce Clause is drawn from footnote #53 found on page 11 of the Raben letter.

The 14th Amendment as Seen in Morrison

Finally, in Morrison, the petitioner attempted to justify the constitutionality of her case under the 14th Amendment. The court's analysis was brief.

The principle has become firmly embedded in our constitutional law

that the action inhibited by the first section of the Fourteenth Amendment

is only such action as may fairly be said to be that of the States. That

Amendment erects no shield against merely private conduct.¹³

Neither did the court find justification in Section 5 of the 14th Amendment for private action.

In Summary

The proposed "hate crimes" legislation broadly expands the power of the federal government in an area traditionally reserved to the individual states. It is unlike the provision for federal prosecution of racially motivated "hate crimes" found in 18 U.S.C. § 245, which is linked to narrowly defined, federally protected activities. To construct a constitutional basis for federal intervention, Senator Kennedy and his associates rely on a link between "hate crimes" and the Commerce Clause. This connection is doubtful in light of U.S. v Morrison.

Printer Friendly Version

Recent Articles

Lesbian Activists Disrupt Smith College Speech

Hate Crimes Fears Realized

Kids Say, “Enough with the ‘Gay’ Stuff!”

Signature Goals Achieved In California!

Christians Counter "Day of Silence" with School Protest

Studies Demonstrate Abstinence Education Works

Pro-Family Coalition Urges “Day of Silence Walkout”

The Pregnant Man: A Short Tale

The Untold Story about Sally Kern

Prayer Rally for the Virginia Supreme Court!