Hate Crimes and Federalism

Congress is considering proposals to create a broad hate-crimes law covering crimes based on sexual orientation, gender, and disability, as well as race. Hate-crimes laws have been criticized for allegedly creating “thought crimes.”

The Bush Administration has rightly objected to the bill on quite different, constitutional grounds, specifically federalism and the limits on Congressional power.

Under our Constitution, the powers of the federal government were intended to be limited and few in number. States, not the federal government, were supposed to be primarily responsible for defining and preventing crimes.

In recent years, however, the Supreme Court has often abdicated its duty to enforce limits on federal power. It has increasingly allowed the federal government to regulate, and even criminalize, all sorts of activity. Relying on Congress’s power to regulate interstate commerce, the court has upheld federal regulation as long as the regulated activity has a remote or conjectural connection to interstate commerce.

For example, it allowed Congress to ban possession of medical marijuana in the 2003 Gonzales v. Raich case, claiming that not just the sale of marijuana but also mere possession had to be banned to dry up interstate markets in marijuana.

The Administration is on solid ground in objecting to the legislation on federalism grounds. In United States v. Morrison (2000), the Supreme Court struck down another hate-crimes law — the Violence Against Women Act provision allowing federal lawsuits for gender-based hate crimes — on federalism grounds.

In that case, the courts recognized that hate crimes are not closely enough related to interstate commerce to be subject to federal jurisdiction under the Constitution’s Commerce Clause.

Nor can they be prohibited under the Fourteenth Amendment, which prohibits states from denying the equal-protection of the laws, since the Fourteenth Amendment only applies to governmental discrimination, not private hate-crimes. Thus, banning gender-based hate crimes is a decision to be made by states, not the federal government.

What is true for gender-based hate crimes is true for sexual-orientation based hate crimes as well. Under the Morrison decision, Congress lacks the power to ban hate crimes based on sexual orientation.

(Congress does have the power to ban one, specific kind of hate crime: race-based hate crimes. The courts have held that under the Thirteenth Amendment, designed to protect the freed slaves, even private racial discrimination can be banned. But as the Morrison district court observed, that authority does not extend beyond racial discrimination to other kinds of discrimination).

Although the Administration is right to oppose the bill, its federalism argument would be stronger if it had not itself gotten the Supreme Court to weaken the limits on federal power in the Gonzales v. Raich case. In that case, the Administration, in its blinkered zeal to prevent states from allowing medical use of marijuana, got the Supreme Court to allow the federal government to ban even private possession of medical marijuana.

While the hate-crimes bill has serious constitutional problems, gay and lesbian commentators are right to point out the irony of the objections raised by some lobbying groups on the Religious Right. Those groups decry this hate-crimes bill for trampling on federalism and creating “thought crimes,” but they never had a problem with religion-based hate-crimes laws, which raise many of the same issues. And they have seldom let federalism concerns stand in the way of demanding legislation they favor, such as the law that federalizes prosecutions of church arson.