Posted on March 19, 2014

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.