Some policymakers in Washington want to make it easier for the federal government to prosecute people for what's in their minds. Among those who support that idea are President Clinton and Senators Edward Kennedy and Arlen Specter. The foolishness, as you can see, is bipartisan. Kennedy and Specter are co-sponsors of a bill that would expand the federal government's authority to prosecute what are called hate crimes. There is already federal authority in the matter but apparently not enough for these senators. The Hate Crimes Prevention Act (a typical Washington title) would stiffen penalties and give the Justice Department more power to preempt local law-enforcement authorities. At a recent White House conference on hate crimes, President Clinton also got on board.
Maybe it should be a crime to show such contempt for the Constitution. The President and senators would be in the hoosegow today.
What could be wrong with federal prosecution of hate crimes? Lots of things.
First, there is no definition of "hate crime" that does not make feelings a criminal offense. In typical hate-crime legislation, someone committing a murder or assault faces additional punishment if it can be proved that the perpetrator bore his victim ill-will for reasons relating to race, ethnicity, sexual orientation, and similar considerations. In other words, if you strike someone because you dislike that person in particular, you get one penalty. If you strike him because you are bigoted toward that person's racial group, you are punished more severely. The hateful state of mind is a crime and therefore gets you a longer jail term.
On at least two counts, that approach departs from how the United States has handled crime since its founding. As Western legal thinking has developed over many centuries, one could be punished only for deliberate acts against the person and property of another. The word "deliberate" does refer to a state of mind. The criminal must have intended to do harm or at least have been reckless with respect to the consequences of his action.
The category of hate crimes goes beyond identifying a general malicious state of mind and distinguishes between different kinds of malice. Given identical criminal acts, malice born of bigotry is treated more severely than malice born of other considerations. That is ominous. What other distinctions will enterprising policymakers and interest-group lobbyists come up with in the future?
I don't think we want to learn the answer to that question.
If bigotry can be an element in a crime, why isn't bigotry itself a crime? It doesn't take a huge stretch of the imagination to see this as the next step. Actually, bigotry has been a federal crime for quite a while. An employer is free to turn down an applicant for a job for any reason unless the reason is defined as bigotry by civil rights employment law. A landlord is free to turn away a prospective tenant—unless the reason is defined as bigotry in civil rights housing law. State of mind makes all the difference in whether a peaceful act is treated as a crime.
Blind bigotry is morally objectionable. Nevertheless, hiring and renting are aspects of freedom of association. And freedom of association must include the freedom not to associate according to one's chosen standards. We may not like those standards, but we should defend to the death another's right to have them.
There is another problem with federal prosecution of "hate crimes." The Constitution does not give the federal government general authority in criminal law enforcement. That makes it a state and local matter, and for good reason. Centralization of power is always to be feared. The chance of abuse is lessened when power is decentralized. The framers of the Constitution knew what they were doing when they gave the federal government jurisdiction over only a few crimes. They opted for decentralization regarding the rest. Violation of that principle in recent years has been a bad thing. Rather than going further in that direction, we should repeal the federal intrusion that has already taken place.