Hate-Crime Laws and the Expansion of Federal Power

John Fund, National Review, March 18, 2014

Forty-five states and the District of Columbia provide additional penalties for crimes that they classify as “hate crimes,” over and above what would have been available if the same crime been committed with a different motivation. In 2009, President Obama signed into law a federal hate-crimes statute that adds a third level of criminalization for violent crimes that occur “because of” the victim’s “actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation.”

Actual hatred is not required. It is enough that there is a causal connection between the crime and one of these grounds.

Like all federal criminal statutes, this one gives federal authorities the power to prosecute a defendant who has already been prosecuted by state authorities. They can even prosecute a defendant who has been acquitted. Double-jeopardy protections do not apply.

But can such far-reaching federal authority to try a defendant twice be justified under the Constitution, especially given how emotionally charged these prosecutions often are? In the absence of evidence that states are “falling down on the job,” shouldn’t such prosecutions be state-controlled? On Friday, the Supreme Court will decide if it will hear a case directly challenging part of the federal government’s claim of authority in this area.

The Obama Justice Department has argued that the part of the 2009 Hate Crimes Prevention Act that governs race is constitutional under the 13th Amendment, which reads that: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

How is it that one can read the 13th Amendment to prohibit criminal activity, though racial in nature, if it has nothing to do with “slavery or involuntary servitude?” The Supreme Court ruled in the 1883 Civil Rights Cases that “Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents.”

For 85 years, that doctrine was used properly to fight against criminal laws at the state level that ensnared sharecroppers and agricultural laborers in a cycle of debt that sometimes forced them to remain on the plantations. This system of peonage roughly approximated many of the attributes of antebellum slavery. But starting with a 1968 housing-discrimination case, the Supreme Court began stretching the phrase “badges and incidents” beyond any tenuous connection to slavery. In Griffin v. Breckenridge (1971), for instance, the Court held that “the varieties of private conduct that [Congress] may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. . . . Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery.”


The problem with granting Congress such sweeping power under the 13th Amendment is the mischief it could encourage. Given the movement the Supreme Court has made to signal limits on Congress’s ability to legislate under the Commerce Clause, liberal legal scholars are embracing the 13th Amendment as a new catch-all justifying federal intervention in a host of areas. As Alison Somin and Gail Heriot of the U.S. Commission on Civil Rights note, scholarly articles argue that the section of the 13th Amendment used to justify the 2009 federal hate-crimes law can be used to authorize the following:

Hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; bans on racial profiling; minimum-wage laws; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in capital punishment; regulation of environmental problems in African-American communities; regulation of the use of the Confederate battle flag; federally funded job-training programs for the urban underclass; a federal ban on rape; bans on payday lending; and even changes to our nation’s “malapportioned, undemocratic presidential election system” because of its “appeasement to southern slaveholding interests.”

Predicting which of these sometimes fanciful proposals might become law in the future is impossible. But today’s fanciful academic musings often become tomorrow’s legislation, especially in the fevered atmosphere following a crisis or scandal. Before the New Deal, few would have predicted the massive growth of the Commerce Clause power that the federal government began using to regulate just about everything.


Topics: ,

Share This

We welcome comments that add information or perspective, and we encourage polite debate. If you log in with a social media account, your comment should appear immediately. If you prefer to remain anonymous, you may comment as a guest, using a name and an e-mail address of convenience. Your comment will be moderated.
  • dd121

    This is how they plan to control conservatives. Next, your guns.

  • connorhus

    a federal ban on rape? Bet that’s one authorized use “My People Holder” won’t get the DoJ working on now is it?

    • r j p

      There will never be a ban of black male on white female (or male) interracial rape.
      That would create a disparate impact situation.
      When was the last time a white male raped a black female? …. The eighties?

      • Reverend Bacon

        Maybe the 1880’s. Definitely none since McDonalds started taking food stamps.

      • Conrad

        Not under this evil government.

  • thomas edward

    Hate-Crime Laws
    My wife says I could be brought up on hate “thought” crimes just by the expression on my face.

    • Anglo

      If you work anywhere serving the public, I believe she may be right. They’re watching (supervisors/others); you have to treat everyone and greet everyone exactly the same. I know; I’ve worked for a former employer in this situation. You can get into trouble. It’s all part of the psychological warfare going on.

    • Conrad

      shhh! Don’t give those nuts ideas.

    • Romulus

      Lol! I’ve also been told that I have exceptional public facial expressions!

      • Ace

        Look out for facial expression crimes from here on out. Don’t say I didn’t warn you.

        • David Ashton

          Face hate.

          Face as a social construct.

          Facial equality.

          The Myth of Face.

          Face does not exist.

  • The US crossed the line that separates a nation of laws from a nation of men a while back. I am probably one of the stupid ones, but I didn’t notice anything wrong until the Clintons took office in 92. There was a soft touch to it at first, but Waco and the deportation of the little Cuban boy (Elian Gonzalez?) back to Communist Cuba, turned the soft touch into tyranny. It’s been all downhill in terms of the imposition of a Marxist egalitarian agenda since then, and it’s picking up steam. Either we live as mind-controlled slaves or we revolt.

    • Alfred the Great

      I’d push the clock back a little farther, starting with the abuses by the general government that led up to 1861.

      • BillMillerTime

        Look at the original Constitution. Either is was designed to give us what we now have, or else it failed to stop it. What’s the answer? Sure, I’d like to set up a white ethno-state somewhere, but then again I’d also like to get ice cream by mail.

        • Alfred the Great

          The Constitution didn’t fail, men failed.

          • This is like saying communism didn’t fail, it just hasn’t been practiced right. No, any system designed to be operated by men has to account for human inconsistency, hypocrisy, and immorality. Thus the Constitution failed, because it didn’t include failsafe systems to protect against its own perversion and eventual destruction.

            It was a good foundation but badly needs updating to account for the total lack of basic Western morality we see in our society today. We need: a return of public executions, capital punishment for any public officer found guilty of corruption, term limits for everyone in a government office, banning government unions, removal of the right to vote for all but those who pay income taxes and/or property taxes, dismantling of the Federal Reserve and a return to the gold standard, protective tariffs, a total dismantling of all foreign military bases and an isolationist foreign policy, ineligibility to donate to political campaigns or hold public office if one is a) a dual citizen or foreign national of any country outside the United States and b) a convicted felon (apologies, Mr. Scott), and sacred enshrinement of all of the first ten Amendments, most especially the Second and Tenth.

            Think we’ll get those under the current liberal zeitgeist? No, we need a total reset. But the Constitution was a good framework, built by men as flawed as we.

          • SoulInvictus

            “the total lack of basic Western morality we see in our society today.”

            Like he said, the Constitution didn’t fail, men failed. There was no way the founders could have anticipated our society. It’s not like there weren’t bad elements in their day, they just had the good sense not to let them govern.
            I agree with you that it needs a rewrite, but there’s no way you could get everyone to come to a consensus now.

            Things the founders couldn’t have anticipated:
            Many, many East India Companies operating globally and being recognized as persons by the courts.
            Automatic weapons.
            Intercontinental weapons.
            Instant global communication and mass media.
            Complete destruction of states’ rights.
            Complete destruction of privacy.
            The degree of polarization between political parties operating in their interest and not the country’s.
            Black people voting and being in power.
            Europeans becoming a powerless minority in a country they carved out.
            Commie-lite liberalism.
            A populace stupid enough to welcome in immigrants from nations, cultures and religions openly hostile to the US (and capable of inflicting mass casualties with one suicidal attack).

            A rewrite of the Constitution would go even more horribly wrong than it already is with today’s political climate. There would cease to be state governments. There would only be national popular elections. Borders would be dissolved. Leftists would basically turn us over to a one world UN government in time.
            Though at this point, since we’re absorbing their poor anyway, we may as well become the United Western Hemisphere. At least we’d get free access to the resources of South America to compensate a little for taking on their underclass.

          • You’re only restating my point and I think we agree. Any system not designed to anticipate the failings of men will eventually be subverted. We have to put into place such deterrents to corrupting the founding documents that it simply isn’t possible without the total collapse of the country.

            I would support laws declaring any and all government employees, elected or otherwise, who attempted to change, alter, or otherwise amend the first ten of the Amendments to be guilty of treason and sentenced to a quick execution upon conviction.

            No more activist judges. No more executive orders or other commands by fiat. Without immediate, visible, permanent consequences for treason against the documents, the documents are only as good as the men who live by them. History has shown us that no men are good enough.

          • BillMillerTime

            Executive orders should be binding only on the executive branch. The executive branch is way too strong. It now has rule-writing authority, rule interpretation, and rule enforcement all rolled into one branch. The Founders *never* envisioned such a thing just as they never intended the perversion of the interstate commerce clause to mean that fedgov can control every aspect of our lives since literally anything can “affect” interstate commerce.

          • BillMillerTime

            I’m nodding along with you until you get to protective tariffs. Let’s say that you decide to impose an import tariff on steel. That drives up the costs of every firm (such as auto manufacturing) which requires steel as an import, putting them at a disadvantage in the market place. In the long run, you actually end up losing more jobs than you save. Don’t take my word for it; you can review the economic research that has been done on this question.

          • How would you suggest we prevent the strip-mining of our domestic economy by predatory globalist interests? I’m genuinely curious.

          • BillMillerTime

            I was trained in economics and I cannot figure out what you are saying.

          • Taken together, neither of your statements is surprising.

      • True, but even though I’m old I wasn’t alive in 1861 unless I’ve been reincarnated. Thank god for my high school history teacher Mr. Kent, who planted the seeds of racism and skepticism in my mind with his truth-telling about Lincoln and the Civil War. RIP, Mr. Kent. He’d be fired today.

    • paul marchand

      Hold a ” what if? ” constitutional convention ( which justly eliminates voting by * illegal aliens and children retro to say 1970 * govt employees * net recips of govt largesse.
      Then somehow simply implement it. And be ready.

  • MekongDelta69

    Straight white male conservative legal American citizens/Vets = Bad

    Everybody else = Noble and Good

  • Alfred the Great

    The Constitution as written did not place domestic rights (today they are called civil rights) under the jurisdiction of the general government. The States had the only authority when it came to their respective internal affairs. The rights over which the general government has jurisdiction are only those connected to the enumerated powers. In Joseph Story’s commentaries he relates that the Civil War amendments did not change the relationship between the States and the general government. The Supreme Court justices and probably nobody in Congress, much less the State governments, know who has authority over what. These “interpretations” of the Constitution by government are nothing more than unlimited and arbitrary power. This is another reason why America will totally crater. And I think that most people don’t care because they are no more than sheep.

  • BillMillerTime

    “Hate crimes.” Ah yes, as opposed to all those “I like you very much” crimes i keep reading about.

    • So CAL Snowman

      I would assume that the ACLU and the SPLC places black on White rape in the “I like you very much” crime section.

      • JSS

        black on White rape is a myth that only exist in the minds of Whites who are hateful and have irrational fear of the noble oppressed black. While some cases of “sex gone wrong” between congoids and Whites may exist rape is only committed by straight White males.

      • BillMillerTime

        How dare you stereotype Negro males like that! Don’t you know that “stereotype threat” be holdin’ da brothas down?

  • John R

    Let me get this: Over 90% of interracial assaults feature a black assailant on a white victim, but it is the blacks that require special “hate crime” protections? It only makes sense if the group is frequently picked on, like when cowardly muggers chose the elderly or the handicapped. But blacks? Please! Only blacks are a threat to blacks. Rarely does any black person have any reason to fear assault by anyone but his own kind. Blacks don’t know what it is to have to fear people of another race, despite what they like to argue.

  • Truthseeker

    I’m sick and tired of the term “hate speech.” As long as someone isn’t hurting another person, it shouldn’t matter whether he “hates” that person. The law can’t require me to like anybody.

    • David Ashton

      Hate is not hurt. This distinction must be maintained.

    • Sloppo

      “Hate-speech” is usually just a coded term for “truth-speech”. It often has absolutely nothing to do with hatred. White people who love and wish to see the continued existence of their racial family are considered guilty of “hatred”.

    • Jesse James

      The reason they insist on using the “hate speech” is that it is a legal stepping stone towards what they really want, to be able to prosecute anyone who deviated from allowed thought patterns for hate thought. I notice that the scientist have been working on telling what people are thinking and feeling with brain scans so at some point in the future if we don’t smash the totalitarian security state you won’t even be able to lie and pretend to submit. They will just scan your brain and then send you to re-education camp.

  • David Ashton

    This is paralleled in the UK even down to the phraseology. Coincidence or conspiracy? Actual or “PERCEIVED” note. No mention of the victim’s politics, also note.

  • sbuffalonative

    “Civil rights laws were not passed to protect the rights of white men and do not apply to them.” — Mary Frances Berry, former Chairwoman, US Commission on Civil Rights

    • Zaporizhian Sich

      Indeed, they were passed to destroy the rights of white men, and will be used to exterminate us unless they are repealed.

    • Sloppo

      She deserves credit for being honest and forthright with that statement. White people need their own exclusive homelands if they wish to have civil rights.

    • itdoesnotmatter

      “Mary Frances Berry.” It has a woman’s name, but is it a woman?

    • BillMillerTime

      Because some people are “more equal” than others, right Miss Mary?

  • Luca

    If a feral black breaks into your home at 2 AM and you kill him, make sure you also take his wallet. Then you can tell the judge your intent was robbery and not a hate crime.

  • Einsatzgrenadier

    There’s absolutely nothing wrong with hatred. It is disgraceful to pathologize such a beautiful, sublime emotion. Being able to hate is one of the greatest things there is. There is no emotion greater or more powerful than hate. To be filled with hatred is to be electrified by a pure, spiritual energy. Racial hatred is the ultimate expression of man’s will to racial self-preservation. You can’t have love without hate. Hate gives meaning and purpose to our existence. The greatest achievements of human civilization arise because the overman channels his hatred into more creative outlets. Without hate, there can be no resistance to abject slavery and brutal tyranny. Without hate, there can be no justice. It is hate that separates man from the animals and the individual from the docile masses of humanity. Let us define ourselves by our hatred. Our hatred will one day overthrow the new world order and preserve the white race in its darkest hour of need.

    • Romulus

      We will need to embrace the power of our mighty ancestors. Let their memory echo down through the ages and give us strength. Fill your hearts with their memories and history. Apologize for nothing! Help our own regain their self esteem. Teach them righteous anger.
      The whole world despises us (the west) but all wish to be part of it.

    • Guest

      It wasn’t love that cracked the whip and drove the money changers from His father’s house.

    • Thank you. Without Hate, how can we distinguish Love? The moral relativists would have us all marinating in the soft grey sludge of ambivalence. But passion is what makes us human. Hate is as important a human emotion as Love, and that’s probably why the multicultists fear it so–they’re incapable of love and understand correctly, in some dim reptilian part of their brain, how many of us righteously hate them.

  • JohnEngelman

    I am opposed to hate crimes legislation, and especially to laws against hate speech.

    Nevertheless, John Fund is arguing that hate crimes laws are unconstitutional. The Constitution does not mention hate crimes laws. When the Constitution does not clearly say something we should assume that it should be left up to the state legislatures and the Congress.

    • Martel

      Check out the article about Asians.

    • Einsatzgrenadier

      Every crime is a hate crime.

      • JohnEngelman

        Rapists are motivated by sexual desire. For some reason liberals get angry when I point that out.

    • Andy

      “When the Constitution does not clearly say something we should assume that it should be left up to the state legislatures and the Congress.”

      Congress is not allowed to legislate on anything the Constitution doesn’t specifically say it can. So federal hate crime laws are unconstitutional, while state and local ones are not.

      • JohnEngelman

        Your reasoning depends on the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

        However, your reasoning and the Tenth Amendment could be used against Social Security and Medicare. If the Supreme Court used the Tenth Amendment to find Social Security and Medicare unconstitutional, every Supreme Court justice who voted that way would be impeached, and the Tenth Amendment would be repealed.

        • Andy

          Perhaps so, but that doesn’t mean that’s not what the Constitution says. There’s no point in having one if we ignore it. If we want to change it, there’s a process for doing so.

          Anyway, I would think there’s a stronger case for Social Security and Medicare being Constitutional than hate crimes laws. It’s questionable whether Congress is prohibited by the tenth amendment for spending tax money on what it pleases, as long as it’s not making laws.

          I can’t reply to your posts on the other thread as it’s been closed. Thank you for your responses. I agree with you that Republicans are not much better than Democrats on immigration and that Clinton’s signing the welfare-limiting act was good, but that doesn’t mean that the Democrats’ policies are generally better than the Republicans’. As for the list of inventions, obviously Orientals have invented plenty of stuff – I just don’t see them being “more” creative than whites. Fourteen inventions from the Orient do not show that they are. There are plenty from white areas also, and that does not even address the arts.

          • JohnEngelman

            Quite aside from the Constitutional issue, I am skeptical of the value of hate crimes laws. Criminals should be punished, regardless of whether they are motivated by hate, greed, or lust.

            Hate crimes laws can segue into hate speech laws, when can be used to suppress race realism.

  • Interstate commerce is now in the legal eye of the beholder.

    Slavery is now in the legal eye of the beholder.

    Equal protection of the laws is now in the legal eye of the beholder.

    What it all means is that the Constitution means anything that anyone wants it to mean. Therefore, “Constitutionalism” is a political philosophy isn’t just a dead end, but an empty vessel.

    • Romulus

      “In the legal eye of the be-(eric) holder”

      The constitution was never meant for all peoples of the world. It makes tragic sense that our enemies would seek to alter it beyond recognition over time as their numbers have increased.
      They are now in the process of convening an Article 5 constitutional convention to supposedly force the government to follow our documents as written. This was proposed in Michael levines newest book. I will be discussing this very topic with John McManus in the coming weeks.
      He believes that this might not be the case at all. Instead , he believes that it will stage a dangerous precedent for the “government” to alter the Documents as they see fit. I.e.;
      Reversing posse commitatus, elimination of the second amendment,etc.

      I’ll post as information becomes available. I want to be as informed on this as humanly possible. Depending on the outcome, it could spell the end. I will NEVER yield to an undoing of certain rights

  • Pro_Whitey

    I have a more technical complaint. Why isn’t the wiping out of the badges and incidents of slavery contemplated under Section 5 of the 14th amendment, which gives Congress power akin to a grant under Article I, Section 8. Why is the 13th amendment necessary? I wonder if everyone is trying to ignore the existence of Section 5 of the 14th amendment, which, if Congress exercised its prerogative, would put decisions about “equal rights” under the purview of Congress and not the Supreme Court.

  • Jon Doe

    In all seriousness… I made some comments on CNN about settlement vs bribes vs payouts. Apparently they didnt appreciate me telling the truth about why big companies who gets fined or “settle” lawsuits, the money never actually goes to the victims, that the select few can “settle” a payout to make their problems go away ex. Bill Clinton billionaire buddy flying in children sex slaves that never saw the inside of court. No body talks about this and when I did, I was censored, deleted and banned. Mention ol Bill, Obama, Soros and its “off with his head!” Crazy… it goes beyond “hate speech” it is really “say something I dont like and let me pull my social engineering dictionary to counter you” apparently i must be an “extremist/conspiracy theorist”

  • AndrewInterrupted

    Affirmative Action qualifies as a hate crime then. Maybe this is our big break?

  • slash345

    “Hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; bans on racial profiling; minimum-wage laws; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in capital punishment; regulation of environmental problems in African-American communities; regulation of the use of the Confederate battle flag; federally funded job-training programs for the urban underclass; a federal ban on rape; bans on payday lending; and even changes to our nation’s “malapportioned, undemocratic presidential election system” because of its “appeasement to southern slaveholding interests.”

    This sounds like something a black leader would impose on a white population.

    I think the blacks have more power than we thought in washington.

    The enemy reveals itself more and more each passing day.

  • I’m sorry, I know this is unpopular to say, but the US Constitution, like all constitutions, is only a parchment declaration. One cannot build a community or nation around what are essentially rules of federal procedure. The Soviet Union, Liberia and South Africa had/have constitutions. I studied the USSR one – not a bad document, actually; seemed reasonable. But it was MEANINGLESS! Once the men who run a nation are corrupt, no written document will prevent decay and tyranny. This is why Ron Paul comes across as such a…nice but ineffectual man.

    • Martel

      The authors of the constitution displayed a great deal of insight into the nature of power in politics, its one if the finest documents ever written, if only more civilians and business leaders had stood up during the 20th century to protect its original intentions. The constitution should also have safeguarded the demographic composition of the United States.

      • David Ashton

        What indeed was the “posterity” that the Founding Fathers conceived?

    • dcc2379

      There is some truth to what you say. Ronald Reagan once remarked that freedom was never more than a generation from being eradicated. Americans constantly have to renew their liberty; yet, minorities and non-Christians do not have this value. While this might not be popular, there are three major causes of this societal destruction:
      1. Destruction of property rights. The main tool: Civil Rights legislation. For example, the SCOTUS case about Hobby Lobby is about their property rights or lack thereof. Imagine allowing people to vote about taxes that pay no taxes.
      2. Lack of Christian values. The Protestant Work Ethic, coupled with white intelligence, creates a sense of community.
      3. Blacks and other minorities have a racialist view of the world that whites do not have.

  • WR_the_realist

    The only sensible way to interpret the Constitution is the originalist approach, asking what was plainly meant by those who wrote and amended it. As soon you stray from that you get unending nonsense such as what has sprung from the 13th Amendment.

  • LovelyNordicHeidi

    All those who signed that are ignorant liberal minions.

    • Grantland

      Zombies, more like. The walking dead.

  • David Ashton

    This is so unexpectedly candid that it is hard to believe it is an actual quote.

  • David Ashton


  • Sick of it

    There’s a good article on CCC re: yet another dictatorial executive order signed by Lord Obama. Not that I can comment on it, as I am apparently banned from the site.

  • BillMillerTime

    I disagree. Read the economist Ricardo and you’ll see why.

  • Perhaps. Nothing is free in this world.