The Unwise Hate Crimes Bill

The Kennedy Hate Crimes Bill introduced earlier this year, which I mentioned in this space on Tuesday, is a dangerous piece of legislation. Not only will the bill create a type of “thought police” by criminalizing an offender’s perceived mindset during the commission of a crime (and giving future justification for criminalizing the thoughts of law-abiding citizens), but also the bill is unconstitutional, unnecessary, and will damage law enforcement efforts.

Its unconstitutionality comes in two forms. First, the bill will attempt to regulate some hate crimes by claiming a right to do so based on those crimes’ alleged effect on commerce. This excuse for increased federal involvement in state and local affairs will not pass constitutional muster. In two cases, United States v. Lopez and United States v. Morrison, the Supreme Court stopped the government’s attempts to federalize local criminal prosecution via the “regulation of commerce.” In both Lopez and Morrison, the Court held that an activity must “substantially affect” interstate commerce before the federal government may regulate it under the commerce clause. Kennedy’s bill is about federal law enforcement — a fact the Supreme Court certainly will have no difficulty distinguishing.

The second constitutional problem the Kennedy bill faces is its assertion that the 13th Amendment provides the government’s authority to federalize hate crimes. Supporters argue for the bill on the basis that the Supreme Court ruled in the 1971 Griffin v. Breckenridge case that the 13th Amendment outlaws both slavery and its vestiges. Apparently, whites who commit hate crimes against blacks are sustaining such vestiges of slavery. What of hate crimes committed by blacks against whites? Can we say they merely were trying to escape the same vestiges of slavery, or would their hatred also be an unconstitutional vestige of slavery?

An infuriating aspect of this bill is that its supporters have no evidence that state and local authorities are failing to prosecute people who commit crimes based on prejudice. In fact, the bill’s sponsors attempt to garner support by stating that they do not believe the federal government will wind up prosecuting many cases at all. This causes one to think that perhaps what Kennedy and others are seeking is federal prosecution in high-profile cases so as to generate political points by claiming the credit for punishing the guilty parties in said cases.

Though the authors of the hate crimes bill claim that their intention is to create a collaborative process under which the feds would only get involved in a few cases, nothing in the legislation would limit the government to that small role. The federal government could unilaterally take action in any case it deemed appropriate, which would eliminate any sort of collaborative effort with local law enforcement and, in its place, would create a coercive relationship.

Another practical problem with the bill is the federalization of every sexual assault. Every rape is motivated by gender and, thus, would fall under the bill’s definition of a hate crime. Nearly all violent crimes are prosecuted at the state and local levels. This is done for good reason: the federal government, unlike states and localities, lacks the experience, expertise, and local knowledge in such cases that is required to do a good job. If the federal government attempts to assume the responsibility for the prosecution of hundreds of thousands of annual rape cases, it would certainly do a worse job, likely resulting in some rapists, who would otherwise have been convicted in state or local jurisdictions, going free.

Were there evidence that state and local governments habitually failed or refused to prosecute and punish people who commit hate crimes, then the federal government would have a legitimate reason to take action against those failing governments. The fact is there is no such evidence.

The bill’s supporters use the horrific murders of James Byrd and Matthew Shepard as evidence of the need for federal hate crimes legislation to better prosecute these types of crimes. What they neglect to mention is that three men were tried and convicted in Texas state court, two of them sentenced to death and one to life in prison, for the murder of James Byrd, and the murderers of Matthew Shepard were found guilty in a Wyoming state court and sentenced to life in prison.

Sen. Kennedy’s Hate Crimes Bill is unconstitutional and unnecessary and will likely hinder the successful prosecution of criminals. Hopefully, Congress will have enough sense to prevent its passage and preserve the rights and prerogatives of state and local law enforcement agencies.

(This article is adapted from a piece I wrote for the Senate Republican Policy Committee.)



  • Text of S 966, the Hate Crimes Bill
  • CRS Summary of S 966
  • Heads Up: Kennedy Hate Crimes Bill
  • The Kennedy “Hate Crimes” Bill: an Unwise Proposal
  • United States v. Lopez
  • United States v. Morrison
  • Griffin v. Breckenridge