The Framers Would Have Hated Hate-Crime Legislation

by Don Boudreaux on October 30, 2009

in Crime, Law

Nat Hentoff hates hate-crime legislation — for good reasons.  Here’s a letter of his appearing in today’s Washington Post:

The Oct. 28 editorial “A civil rights advance,” applauding President Obama’s imminent signing of “hate crimes” legislation, ignored the legislation’s plain violation of the 14th Amendment’s “equal protection of the laws.” As a result of this law, those convicted of serious bodily harm against protected classes of Americans — based on their gender or transgender identity, sexual orientation, disability, race, color, religion or national origin — could get longer prison sentences than persons convicted of bodily harm against victims outside protected classes. Perpetrators of a violent act not designated a “hate crime” — for example, against a homeless person on the street, or a police officer, or a former employer — could receive lesser prison terms.

Furthermore, the Fifth Amendment states: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This “hate crimes” statute gives federal prosecutors the authority to try a defendant a second time for an alleged hate crime after prosecution in a state court.

Nat Hentoff, New York

The writer is a senior fellow at the Cato Institute.

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Anonymous October 30, 2009 at 1:09 pm

I agree that hate crimes legislation should be wiped from the books (with the possible exception of some statute against terrorizing a broad community… like assaulting a Jewish person in a synagogue and then spray-painting swastikas in the building – which is really assault on more people than just the one Jewish person that is physically assaulted) – but this is a pretty bad argument against it on Nat Hentoff’s part.Who exactly is he suggesting that is “outside the protected classes”???? Who doesn’t have a race? Who doesn’t have a gender? Would Hentoff use the same argument against treason statutes? If you steal something from the government, like information, just for your own benefit then you will get a different sentence than if you steal something from the government for the benefit of a foreign government. Or if you kill a government employee you’re going to get a different sentence than if you kill them in an attempt to overthrow the government. There’s nothing new, unusual, or unconstitutional about that difference in treatment. Nobody is going to say that treason laws are unconstitutional because they treat foreign governments more severely than they treat other beneficiaries. And what about child abuse laws? Or statutory rape? Are these laws unconstitutional because they take the variable of age into account but not other variables – like skin color? The mere recognition of different circumstances doesn’t violate the 14th amendment. Problems come in when people in the same circumstances are treated differently.I also think the fifth amendment argument is weak. The whole point is it’s a DIFFERENT crime. Besides, again this has precedent. In the McVeigh case, for example, the federal government and the state of Oklahoma both had the right to prosecute McVeigh – the feds for killing 8 federal employees, and the state for killing over 100 other people. That’s just dual sovereignty – not double jeopardy. Now, the DOJ has rules in place so that dual jeopardy doesn’t turn into an end-run around the fifth amendment. Presumably those rules will apply to this statute as well. But the very existence of dual sovereignty doesn’t violate the fifth amendment – these are two sovereign governments we’re talking about. The founders wanted both governments to remain sovereign.We shouldn’t have hate crime laws for a simple ethical reason – all crimes are hateful, hate of a certain group isn’t a crime (racism isn’t a crime, sexism isn’t a crime) so we shouldn’t treat people differently for committing crimes based on those perfectly legal (if deplorable) thoughts. That’s why we shouldn’t have hate crimes. Hentoff’s Constitutional arguments ring a little hollow.

Anonymous October 30, 2009 at 1:11 pm

I indulged in a long one because I’ll be busy the rest of today :) Happy Friday and Happy Halloween everyone.

Anonymous October 30, 2009 at 1:11 pm

I indulged in a long one because I’ll be busy the rest of today :) Happy Friday and Happy Halloween everyone.

Anonymous October 30, 2009 at 1:40 pm

I also think the fifth amendment argument is weak. The whole point is it’s a DIFFERENT crime.

That’s sort of the nub of the problem though. The state can make a whole class of things illegal and that gives prosecutors numerous bites at the apple over what is essentially the same act or bundle of acts. Combine that with growing criminalization of just about everything and you have a real problem.

AveSharia October 30, 2009 at 1:55 pm

I’m inclined to agree, but this is not much different than every other tiered-offense scenario currently in existence.

For example: Kill someone on accident, it might be negligent homicide. But the same exact acts, in the heat of the moment, could be second degree murder. Plan it, and it’s Murder 1. None of the differences (being careless, flying off the handle, or planning wrongdoing) are themselves illegal without the consequences (there are some exceptions for actual planning, but again, it’s a different crime).

The point is that, where different mental states (“mens rea” in law) lead to different degrees of culpability, or different degrees of social acceptance, it doesn’t matter that the outcomes are the same. Society has an interest in punishing more harshly behavior it finds more abhorrent. That’s what the hate-crimes bill is about: Assault is unacceptable, but assault because of someone’s race is more unacceptable.

As for double jeopardy, in no case is being charged in federal court considered double-jeopardy by virtue of a state-court charge. I happen to think this is BS, but the Supreme Court disagrees, and it’s going to take a constitutional amendment to change it. But that doesn’t make hate crimes legislation any worse than federal drug charges, or kidnapping. At the same tier (so, two charges in Federal Court, one for assault and one for “hate” assault,) I suspect the assault charge would be treated like any other lesser-included-offense; because all of the elements of assault are included in the “hate” assault, you could be charged, but not convicted, of both. This is like a prosecutor charging someone with 1st and 2nd degree murder: due to uncertainty about how provable the different element is, the prosecutor charges for both and asks the jury for the strongest conviction proven.

Again, I’m not necessarily defending this practice, but it almost becomes necessary if we’re going to institute varying punishments for narrowly different crimes, which I think is a necessity in terms of marginal incentive planning.

Anonymous October 30, 2009 at 2:01 pm

As far as I can tell though, what this leads to is a practice where you are caught not necessarily because you are a wrongdoer – you’ve committed some actual offense most people would recognize as harmful to another person – but simply because of some rather technical issue that someone happened to notice that no one would think was an actual crime. This is the law vs. legislation distinction that Hayek made.

Anonymous October 30, 2009 at 2:01 pm

As far as I can tell though, what this leads to is a practice where you are caught not necessarily because you are a wrongdoer – you’ve committed some actual offense most people would recognize as harmful to another person – but simply because of some rather technical issue that someone happened to notice that no one would think was an actual crime. This is the law vs. legislation distinction that Hayek made.

AveSharia October 30, 2009 at 2:27 pm

I’m unaware of any cases where someone was charged with an attempt for “some rather technical issue that someone happened to notice that no one would think was an actual crime.” While I could see this happening (imagine a nuanced securities crime, for example), I’m not too sympathetic. You don’t have to know something is a crime to be convicted of it- so why should you know something is a crime to be convicted of attempting to do it? The point of attempts is to be able to prevent a crime, and still punish the perpetrator for the deterrent or retributive benefits. That purpose is served perfectly by punishing someone for committing an attempt.

Maybe it would be helpful for a real-life example of someone being “wrongly” prosecuted… Perhaps someone could dig one up? I’m looking for one that would distinguish attempts or hate crimes from other “wrongful” prosecutions, so a situation with an overzealous prosecutor probably won’t be too helpful.

AveSharia October 30, 2009 at 2:27 pm

I’m unaware of any cases where someone was charged with an attempt for “some rather technical issue that someone happened to notice that no one would think was an actual crime.” While I could see this happening (imagine a nuanced securities crime, for example), I’m not too sympathetic. You don’t have to know something is a crime to be convicted of it- so why should you know something is a crime to be convicted of attempting to do it? The point of attempts is to be able to prevent a crime, and still punish the perpetrator for the deterrent or retributive benefits. That purpose is served perfectly by punishing someone for committing an attempt.

Maybe it would be helpful for a real-life example of someone being “wrongly” prosecuted… Perhaps someone could dig one up? I’m looking for one that would distinguish attempts or hate crimes from other “wrongful” prosecutions, so a situation with an overzealous prosecutor probably won’t be too helpful.

AveSharia October 30, 2009 at 1:55 pm

I’m inclined to agree, but this is not much different than every other tiered-offense scenario currently in existence.

For example: Kill someone on accident, it might be negligent homicide. But the same exact acts, in the heat of the moment, could be second degree murder. Plan it, and it’s Murder 1. None of the differences (being careless, flying off the handle, or planning wrongdoing) are themselves illegal without the consequences (there are some exceptions for actual planning, but again, it’s a different crime).

The point is that, where different mental states (“mens rea” in law) lead to different degrees of culpability, or different degrees of social acceptance, it doesn’t matter that the outcomes are the same. Society has an interest in punishing more harshly behavior it finds more abhorrent. That’s what the hate-crimes bill is about: Assault is unacceptable, but assault because of someone’s race is more unacceptable.

As for double jeopardy, in no case is being charged in federal court considered double-jeopardy by virtue of a state-court charge. I happen to think this is BS, but the Supreme Court disagrees, and it’s going to take a constitutional amendment to change it. But that doesn’t make hate crimes legislation any worse than federal drug charges, or kidnapping. At the same tier (so, two charges in Federal Court, one for assault and one for “hate” assault,) I suspect the assault charge would be treated like any other lesser-included-offense; because all of the elements of assault are included in the “hate” assault, you could be charged, but not convicted, of both. This is like a prosecutor charging someone with 1st and 2nd degree murder: due to uncertainty about how provable the different element is, the prosecutor charges for both and asks the jury for the strongest conviction proven.

Again, I’m not necessarily defending this practice, but it almost becomes necessary if we’re going to institute varying punishments for narrowly different crimes, which I think is a necessity in terms of marginal incentive planning.

Justin P October 30, 2009 at 2:38 pm

I agree, it’s the states way of trying to get around Double Jeopardy. It they can’t get them on one things, they just try a different charge, hoping eventually one will stick.

AveSharia October 30, 2009 at 2:50 pm

This point, I agree with. I do not think the federal government should be involved in criminal laws that can be enforced as easily at the state level (see, e.g., drug laws).

AveSharia October 30, 2009 at 2:50 pm

This point, I agree with. I do not think the federal government should be involved in criminal laws that can be enforced as easily at the state level (see, e.g., drug laws).

Justin P October 30, 2009 at 2:38 pm

I agree, it’s the states way of trying to get around Double Jeopardy. It they can’t get them on one things, they just try a different charge, hoping eventually one will stick.

Anonymous October 30, 2009 at 1:40 pm

I also think the fifth amendment argument is weak. The whole point is it’s a DIFFERENT crime.

That’s sort of the nub of the problem though. The state can make a whole class of things illegal and that gives prosecutors numerous bites at the apple over what is essentially the same act or bundle of acts. Combine that with growing criminalization of just about everything and you have a real problem.

David Shaw October 30, 2009 at 2:09 pm

Two issues daniel

1. Everybody has a race, the problem is the way SCOTUS has interpreted the 14th amendment. In their world, since the purpose of the 14th amendment was to end “suspect classifications,” only those races, genders, etc that they deem “suspect classes” have any chance of winning a lawsuit on 14th amendment grounds. So its nearly impossible to commit a “hate crime” against a white male. Yes, I know, historically we white males have had everything handed to us (sarcasm), but the argument is that if the law is not applied equally, then that’s not really equal protection right?

As far as your 5th amendment argument- of course its a separate crime, but only because the legislator made it one! Its just like attempt and conspiracy being crimes- nobody is harmed by that action. People are harmed when the act attempted or conspired to (or the act that results from a bigot’s race hate) is actually carried out. The prosecutor is correct in prosecuting the actual crime. But making it a crime to hate someone not only infringes on your freedoms of speech, association, privacy, etc, but it creates a double jeopardy situation that is patently unconstitutional.

David Shaw October 30, 2009 at 2:09 pm

Two issues daniel

1. Everybody has a race, the problem is the way SCOTUS has interpreted the 14th amendment. In their world, since the purpose of the 14th amendment was to end “suspect classifications,” only those races, genders, etc that they deem “suspect classes” have any chance of winning a lawsuit on 14th amendment grounds. So its nearly impossible to commit a “hate crime” against a white male. Yes, I know, historically we white males have had everything handed to us (sarcasm), but the argument is that if the law is not applied equally, then that’s not really equal protection right?

As far as your 5th amendment argument- of course its a separate crime, but only because the legislator made it one! Its just like attempt and conspiracy being crimes- nobody is harmed by that action. People are harmed when the act attempted or conspired to (or the act that results from a bigot’s race hate) is actually carried out. The prosecutor is correct in prosecuting the actual crime. But making it a crime to hate someone not only infringes on your freedoms of speech, association, privacy, etc, but it creates a double jeopardy situation that is patently unconstitutional.

Anonymous October 30, 2009 at 4:32 pm

Certainly if the law is not applied equally then it’s not equal protection. I just don’t think that has to do with the constitutionality of the law itself. I’m simply saying that I’d oppose hate crime laws because they’re a bad idea – I don’t put a lot of stock in these Constitutional arguments. And like you say – if it is applied unequally then it’s application is unconstitutional. I’m not sure that says anything about the Constitutionality of the law itself.

RE: “As far as your 5th amendment argument- of course its a separate crime, but only because the legislator made it one!”

OK – treason laws make stealing for a foreign nation a different crime too, again “only because the legislator made it one”. So? Who cares?

RE: “The prosecutor is correct in prosecuting the actual crime. But making it a crime to hate someone not only infringes on your freedoms of speech, association, privacy, etc, but it creates a double jeopardy situation that is patently unconstitutional.”

Right. If there is a legitimate Constitutional case to be made against hate crime legislation (and not just an ethical case), I think it would be a first amendment case, not a fifth of fourteenth amendment case.

Anonymous October 30, 2009 at 3:25 pm

Your post this morning is a prime example of why I labeled you Disingenuous Kuehn, or Duplicitous Kuehn, and why so many other participants recognize the truth in the label.

You seem to find it impossible to write anything that does not twist back on itself, is this a deliberate thing or do you just lack the intellectual courage to lay it out and stand behind it?

I would ignore you as a general practice but since you dominate, as a general practice, every thread posted by the hosts you make yourself as obnoxious as the little kid that sat behind us in the 2nd grade and always had his hand up to answer whether he was called on or not.

So, DK, you believe that hate crimes should be wiped from the books, except when a crime looks like a hate crime? That is as good a waffle position as can be made.

“I agree that hate crimes legislation should be wiped from the books (with the possible exception of some statute against terrorizing a broad community… like assaulting a Jewish person in a synagogue and then spray-painting swastikas in the building – which is really assault on more people than just the one Jewish person that is physically assaulted) – but this is a pretty bad argument against it on Nat Hentoff’s part.”

Then you ridicule Hentoff with the silliness quoted below. Has the past fifty years of history gone by with out penetrating your brain? Oh yeah, I forgot, you haven’t lived fifty years of history, so has the last 25 years of history gone by with out penetrating your brain? So, let me help you out: Hate crimes as evidenced by hard actions on the street for the last twentyfive years do, and will protect: Blacks, Hispanics, ethnic minorities such as Jews and Arabs, Asians(under certain circumstances), women of ethnic minority (they get a two-fer here), any religion but Christianity, queers of both sexes, native Americans. So who is left out of the mix of “protected classes”, seems pretty obvious to me and most people who are intellectually honest.

”Who exactly is he suggesting that is “outside the protected classes”???? Who doesn’t have a race? Who doesn’t have a gender?”

Then you ramble off on a series of silly rationalizations that only a sophomore could come up with. But, the last sentence shows that, in the end, you do seem to understand the equality guaranteed by the 14th amendment. As a statist to the core, what you don’t seem to understand is that when in the middle of the game one rewrites the rules to favor individual players on either team, the problems are guaranteed to erupt in officiating and administering the game. That rewrite is what hate crime legislation is all about.

“The mere recognition of different circumstances doesn’t violate the 14th amendment. Problems come in when people in the same circumstances are treated differently.”

Now you proceed to pure idiocy on the 5th amendment with the next quote. You, like so many people educated in leftist public schools and who had simple intellectual exercise denied you never to be learned, make the same mistake over and over: That mistake being the belief that the founders were brilliant on the parts of the constitution you like but stupid on the parts you find inconvenient. The 5th amendment says in regards to double jeopardy “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. DK, do you see the words federal, state, or jurisdiction anywhere in the 5th amendment, particularly in the part I just quoted? The creators of the constitution were intelligent, understood what they were writing, and had access to the finest legal minds in the colonies. Oh how easy it would have been for them to add “in the same jurisdiction” to that phrase! That they did not makes that statement on double jeopardy a flat factual statement with no wiggle room. The current wiggle room created by the SCOTUS is unconstitutional, but so loved by people of all political stripes except those of us who believe in standards. Last, you’re just flat out wrong, the crime is the same, unchanged, all that is being done now is a shell game of jurisdictions to get the target no matter what it takes. Hence the possibility of as much as triple jeopardy with the understanding that if the guy can’t be had in two criminal trials, go after him in a civil suit. The rest of that paragraph is just disingenuous rational-lies-ation, which I admit can blind stupid people. The fact that the founders wanted both state and federal to be sovereign in their particular areas of jurisdiction as delineated by the constitution says nothing, does not apply in any way, to the wording of the 5th amendment, as a matter of fact it is the federal saying to the state, don’t try the double jeopardy thing because the constitution gives us authority to come in a stop you, which was exactly why it was written the way it was.

”I also think the fifth amendment argument is weak. The whole point is it’s a DIFFERENT crime.”

No, dear boy, Hentoff’s constitutional arguments have the solid weight of fact behind them. Again, find the words federal, state, or jurisdiction in the 5th amendment. That you can’t proves Hentoff correct and your drivel sophomoric.

”We shouldn’t have hate crime laws for a simple ethical reason – all crimes are hateful, hate of a certain group isn’t a crime (racism isn’t a crime, sexism isn’t a crime) so we shouldn’t treat people differently for committing crimes based on those perfectly legal (if deplorable) thoughts. That’s why we shouldn’t have hate crimes. Hentoff’s Constitutional arguments ring a little hollow.”

AveSharia October 30, 2009 at 3:45 pm

Vidyohs,

I don’t know about the history with daniel, so I’ll stay out of that mess, but with respect to double jeopardy he is correct. When the constitution was ratified, it only applied to the federal government, so stating that the fifth amendment only applied to it would be redundant (and would actually be necessary in every amendment, making it kind of a broken record).

JohnK October 30, 2009 at 4:41 pm

I’m still trying to figure out the part of the Constitution that allows the federal government to prosecute crime in the first place.
I thought that fell to the States by way of the Tenth Amendment.

Anonymous October 30, 2009 at 5:09 pm

I think it’s implicit depending on the crime. Prosecuting murders of federal employees is a necessary and proper part of running a functional, sovereign federal government – rather than relying on the states.

Besides that, it comes from Article IV, Sec. 3 – they have the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. A lot of federal prosecution has to happen on federal land.

Regulation interstate commerce also provides some latitude for maintaining order when it comes to movement between states.

I agree with you – they certainly overstep their ability to prosecute crime. But those give them (IMO) very appropriate freedom to prosecute certain crimes.

Anonymous October 30, 2009 at 4:57 pm

The constitution applied to the federal government, yes; but as the guarantor of freedom in and to the union of states the constitution had positive effect and ramifications to that union of states, and the jurisdiction of the federal government and the 5th amendment vis-a-vis final arbiter of criminal punishment is clear. The 5th amendment was written to prohibit double jeopardy, in any jurisdiction, because the founders found it unjust and abhorrent in the British system and sought to eliminate it in the new union.

A crime is not different simply because it was committed in one jurisdiction rather than another. That is disingenuous on the face of it, and the dogged determination of government to nail a individual by methodically trying him in multiple jurisdictions for the same crime is a farce of justice and prima facie evidence of the hatred and contempt government has for the people.

What the government is saying to the people through this trying of a crime in multiple jurisdictions is, “You jury people are too stupid to see our truth, so we are going for a do over in front of another jury in a new jurisdiction.”

Tell me that is what the founders intended for the federal government or any of the representatives at the convention intended for their respective sovereign states. Tell me how much disagreement or argument that portion of the 5th amendment generated among the delegates at the constitutional convention.

Such disingenuous arguments such as DK presents flies in the face of the entire 5th amendment. Trial and verdict by jury was accepted as final until the federal government usurped total control and subjugated the states. Now they do what they damn well please, and this is just one example.

AveSharia October 30, 2009 at 5:55 pm

I think very much that none of the states would have ratified the original 5th amendment if it actually said what you proposed: double jeopardy is a two-way street, and no state would accept that they couldn’t put a criminal on trial in their state because the federal government had prosecuted them for the same or a similar crime.

“A crime is not different simply because it was committed in one jurisdiction rather than another. That is disingenuous on the face of it, and the dogged determination of government to nail a individual by methodically trying him in multiple jurisdictions for the same crime is a farce of justice and prima facie evidence of the hatred and contempt government has for the people.”

You may think that, but it certainly wasn’t the sentiment at the time of the founding. if anything, the founding generation took jurisdiction much more seriously and literally than we do.

AveSharia October 30, 2009 at 6:11 pm

“The 5th amendment was written to prohibit double jeopardy, in any jurisdiction, because the founders found it unjust and abhorrent in the British system and sought to eliminate it in the new union.”

I think very much that the states would have rejected the amendment at the conventions if this were the case. They would not accept that a federal criminal prosecution could pre-empt a state one.

“A crime is not different simply because it was committed in one jurisdiction rather than another. That is disingenuous on the face of it, and the dogged determination of government to nail a individual by methodically trying him in multiple jurisdictions for the same crime is a farce of justice and prima facie evidence of the hatred and contempt government has for the people.”

I could be picky, but I tend to agree with this paragraph. But nothing above makes a multi-jurisdictional prosecution a violation of the 5th Amendment.

“What the government is saying to the people through this trying of a crime in multiple jurisdictions is, ‘You jury people are too stupid to see our truth, so we are going for a do over in front of another jury in a new jurisdiction.’”

Precisely.

AveSharia October 30, 2009 at 3:45 pm

Vidyohs,

I don’t know about the history with daniel, so I’ll stay out of that mess, but with respect to double jeopardy he is correct. When the constitution was ratified, it only applied to the federal government, so stating that the fifth amendment only applied to it would be redundant (and would actually be necessary in every amendment, making it kind of a broken record).

Anonymous October 30, 2009 at 4:03 pm

Re: “So, DK, you believe that hate crimes should be wiped from the books, except when a crime looks like a hate crime? That is as good a waffle position as can be made.”

No – the only conceivable hate crime that should be left on the books is if a crime constitutes something like a verbal assault or a threat on a community. For example – painting swastikas during the commission of a murder in a synagogue IS more than just a murder because it constitutes a threat to the community. Black church bombings ARE more than arson because they constitute a threat or assault on the community.

But I don’t think killing someone just because you hate them for their skin color in and of itself is any different from any other murder.

Anonymous October 30, 2009 at 4:03 pm

Re: “So, DK, you believe that hate crimes should be wiped from the books, except when a crime looks like a hate crime? That is as good a waffle position as can be made.”

No – the only conceivable hate crime that should be left on the books is if a crime constitutes something like a verbal assault or a threat on a community. For example – painting swastikas during the commission of a murder in a synagogue IS more than just a murder because it constitutes a threat to the community. Black church bombings ARE more than arson because they constitute a threat or assault on the community.

But I don’t think killing someone just because you hate them for their skin color in and of itself is any different from any other murder.

Anonymous October 30, 2009 at 5:01 pm

No, but yes, eh DK?

“No – the only conceivable hate crime that should be left on the books is if a crime constitutes something like a verbal assault or a threat on a community. For example – painting swastikas during the commission of a murder in a synagogue IS more than just a murder because it constitutes a threat to the community. Black church bombings ARE more than arson because they constitute a threat or assault on the community.”

You are either for or you are against, trying to have it both ways is just plain silly, especially when you still insist you aren’t in the face of your very own words.

Anonymous October 30, 2009 at 5:11 pm

RE: “No, but yes, eh DK?”

It’s only “no but yes” if you put everything that vidyohs doesn’t like in one big box and treat it all the same.

I say “no” to something that is unjustified, and “yes” to something completely different that seems to me to be justified.

RE: “You are either for or you are against, trying to have it both ways is just plain silly, especially when you still insist you aren’t in the face of your very own words.”

I’m not trying to have it both ways. I’m addressing two very distinct kinds of crime. Yes to one, no to another. How is this unclear to you?

Anonymous October 30, 2009 at 8:45 pm

Seems like a distinction without difference to me. You are still going to have government officials trying to determine whether the perp’s motives were based on some motive relating to racial, etc. animus.

Anyway, let’s consider what the ACLU finds objectionable about this as it now stands; its evidentiary standard: http://reason.com/blog/2009/10/13/pelosi-vs-the-aclu-on-the-fede

As it stands right now this legislation is an abomination and affront to a true liberal polity.

Anonymous October 30, 2009 at 3:25 pm

Your post this morning is a prime example of why I labeled you Disingenuous Kuehn, or Duplicitous Kuehn, and why so many other participants recognize the truth in the label.

You seem to find it impossible to write anything that does not twist back on itself, is this a deliberate thing or do you just lack the intellectual courage to lay it out and stand behind it?

I would ignore you as a general practice but since you dominate, as a general practice, every thread posted by the hosts you make yourself as obnoxious as the little kid that sat behind us in the 2nd grade and always had his hand up to answer whether he was called on or not.

So, DK, you believe that hate crimes should be wiped from the books, except when a crime looks like a hate crime? That is as good a waffle position as can be made.

“I agree that hate crimes legislation should be wiped from the books (with the possible exception of some statute against terrorizing a broad community… like assaulting a Jewish person in a synagogue and then spray-painting swastikas in the building – which is really assault on more people than just the one Jewish person that is physically assaulted) – but this is a pretty bad argument against it on Nat Hentoff’s part.”

Then you ridicule Hentoff with the silliness quoted below. Has the past fifty years of history gone by with out penetrating your brain? Oh yeah, I forgot, you haven’t lived fifty years of history, so has the last 25 years of history gone by with out penetrating your brain? So, let me help you out: Hate crimes as evidenced by hard actions on the street for the last twentyfive years do, and will protect: Blacks, Hispanics, ethnic minorities such as Jews and Arabs, Asians(under certain circumstances), women of ethnic minority (they get a two-fer here), any religion but Christianity, queers of both sexes, native Americans. So who is left out of the mix of “protected classes”, seems pretty obvious to me and most people who are intellectually honest.

”Who exactly is he suggesting that is “outside the protected classes”???? Who doesn’t have a race? Who doesn’t have a gender?”

Then you ramble off on a series of silly rationalizations that only a sophomore could come up with. But, the last sentence shows that, in the end, you do seem to understand the equality guaranteed by the 14th amendment. As a statist to the core, what you don’t seem to understand is that when in the middle of the game one rewrites the rules to favor individual players on either team, the problems are guaranteed to erupt in officiating and administering the game. That rewrite is what hate crime legislation is all about.

“The mere recognition of different circumstances doesn’t violate the 14th amendment. Problems come in when people in the same circumstances are treated differently.”

Now you proceed to pure idiocy on the 5th amendment with the next quote. You, like so many people educated in leftist public schools and who had simple intellectual exercise denied you never to be learned, make the same mistake over and over: That mistake being the belief that the founders were brilliant on the parts of the constitution you like but stupid on the parts you find inconvenient. The 5th amendment says in regards to double jeopardy “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. DK, do you see the words federal, state, or jurisdiction anywhere in the 5th amendment, particularly in the part I just quoted? The creators of the constitution were intelligent, understood what they were writing, and had access to the finest legal minds in the colonies. Oh how easy it would have been for them to add “in the same jurisdiction” to that phrase! That they did not makes that statement on double jeopardy a flat factual statement with no wiggle room. The current wiggle room created by the SCOTUS is unconstitutional, but so loved by people of all political stripes except those of us who believe in standards. Last, you’re just flat out wrong, the crime is the same, unchanged, all that is being done now is a shell game of jurisdictions to get the target no matter what it takes. Hence the possibility of as much as triple jeopardy with the understanding that if the guy can’t be had in two criminal trials, go after him in a civil suit. The rest of that paragraph is just disingenuous rational-lies-ation, which I admit can blind stupid people. The fact that the founders wanted both state and federal to be sovereign in their particular areas of jurisdiction as delineated by the constitution says nothing, does not apply in any way, to the wording of the 5th amendment, as a matter of fact it is the federal saying to the state, don’t try the double jeopardy thing because the constitution gives us authority to come in a stop you, which was exactly why it was written the way it was.

”I also think the fifth amendment argument is weak. The whole point is it’s a DIFFERENT crime.”

No, dear boy, Hentoff’s constitutional arguments have the solid weight of fact behind them. Again, find the words federal, state, or jurisdiction in the 5th amendment. That you can’t proves Hentoff correct and your drivel sophomoric.

”We shouldn’t have hate crime laws for a simple ethical reason – all crimes are hateful, hate of a certain group isn’t a crime (racism isn’t a crime, sexism isn’t a crime) so we shouldn’t treat people differently for committing crimes based on those perfectly legal (if deplorable) thoughts. That’s why we shouldn’t have hate crimes. Hentoff’s Constitutional arguments ring a little hollow.”

Anonymous October 30, 2009 at 1:09 pm

I agree that hate crimes legislation should be wiped from the books (with the possible exception of some statute against terrorizing a broad community… like assaulting a Jewish person in a synagogue and then spray-painting swastikas in the building – which is really assault on more people than just the one Jewish person that is physically assaulted) – but this is a pretty bad argument against it on Nat Hentoff’s part.Who exactly is he suggesting that is “outside the protected classes”???? Who doesn’t have a race? Who doesn’t have a gender? Would Hentoff use the same argument against treason statutes? If you steal something from the government, like information, just for your own benefit then you will get a different sentence than if you steal something from the government for the benefit of a foreign government. Or if you kill a government employee you’re going to get a different sentence than if you kill them in an attempt to overthrow the government. There’s nothing new, unusual, or unconstitutional about that difference in treatment. Nobody is going to say that treason laws are unconstitutional because they treat foreign governments more severely than they treat other beneficiaries. And what about child abuse laws? Or statutory rape? Are these laws unconstitutional because they take the variable of age into account but not other variables – like skin color? The mere recognition of different circumstances doesn’t violate the 14th amendment. Problems come in when people in the same circumstances are treated differently.I also think the fifth amendment argument is weak. The whole point is it’s a DIFFERENT crime. Besides, again this has precedent. In the McVeigh case, for example, the federal government and the state of Oklahoma both had the right to prosecute McVeigh – the feds for killing 8 federal employees, and the state for killing over 100 other people. That’s just dual sovereignty – not double jeopardy. Now, the DOJ has rules in place so that dual jeopardy doesn’t turn into an end-run around the fifth amendment. Presumably those rules will apply to this statute as well. But the very existence of dual sovereignty doesn’t violate the fifth amendment – these are two sovereign governments we’re talking about. The founders wanted both governments to remain sovereign.We shouldn’t have hate crime laws for a simple ethical reason – all crimes are hateful, hate of a certain group isn’t a crime (racism isn’t a crime, sexism isn’t a crime) so we shouldn’t treat people differently for committing crimes based on those perfectly legal (if deplorable) thoughts. That’s why we shouldn’t have hate crimes. Hentoff’s Constitutional arguments ring a little hollow.

JohnK October 30, 2009 at 1:39 pm

The purpose of hate crime laws is to criminalize thought by attaching harsher penalties to certain acts depending upon what the perpetrator was thinking at the time.
We already have laws that criminalize “pre-crime” such as DUI laws, drug laws, and weapon laws. These laws punish people for what they MIGHT do, not for what they are doing.
Don’t be at all surprised when hateful (Politically Incorrect) thoughts become illegal because of what the individual MIGHT do.

AveSharia October 30, 2009 at 1:58 pm

Correct me if I’m wrong, but I believe the “pre-crime” charges you’re referring to are “attempt” crimes, which are distinctly different from “thought” crimes in that they require a substantial, affirmative step towards the completion of the crime, in addition to corroborating evidence (so, enough to convince a jury) that you intended to commit it.

David Shaw October 30, 2009 at 2:13 pm

Correct, but they still don’t require that the harmful, criminal act occur. Yes they punish acts, but not the crime itself, only acts of preparation, which are not actually harmful to any other person. Couple that with the fickle nature of lay-jurors and you have a situation where it becomes increasingly likely that one will be convicted with no criminal mens rea, never mind an actus reus.

AveSharia October 30, 2009 at 2:39 pm

This will be a response to both this comment and your comment above- sorry but I didn’t want to double-post some of the same thoughts.

The first point is that it would be silly to require police to wait for a harmful event to occur to be able to prosecute a perpetrator. I’m not saying that you can punish someone for considering, or even beginning to plan, a crime, but requiring the “harmful, criminal act” to occur has the obvious drawback that either police sit by and watch “harmful, criminal act”s occur, or the perpetrator gets off scot-free. There should be a middle-ground, and that middle-ground is the law of attempt (conspiracy is related). I don’t pretend to argue that the law of attempt and conspiracy are well-constructed and well-balanced, but they are constructed to strike a balance, which would be where I would focus my criticism, not in the existence of the charges in the first place.

“Couple that with the fickle nature of lay-jurors and you have a situation where it becomes increasingly likely that one will be convicted with no criminal mens rea, never mind an actus reus.”

What you are describing is no different that for any other crime. If that’s your beef, then it is with jury trials and our criminal justice system to begin with, not the peculiarities of the laws of attempt and conspiracy.

“But making it a crime to hate someone not only infringes on your freedoms of speech, association, privacy, etc, but it creates a double jeopardy situation that is patently unconstitutional.”

While I haven’t read the proposed hate-crimes legislation (and I don’t intend to- I still oppose it), I imagine that you are factually incorrect that hate is being made into a crime. Hate is being made an aggravating factor, just like malice aforethought is an aggravating factor in murder prosecutions. Just because something is an element of a crime, even a distinguishing element, doesn’t make it a crime itself. Otherwise, the entire field of intentional torts makes the intent to do just about anything a crime.

David Shaw October 30, 2009 at 4:16 pm

“The first point is that it would be silly to require police to wait for a harmful event to occur to be able to prosecute a perpetrator.”

- The true liberal response to this is- No, it wouldn’t be silly, it would be a properly functioning criminal law. To punish someone for something other than an actual harmful act is, by definition, to punish thought.

“What you are describing is no different that for any other crime. If that’s your beef, then it is with jury trials and our criminal justice system to begin with, not the peculiarities of the laws of attempt and conspiracy.”

- No, what I’m arguing is that these laws make “attempt” “conspiracy” and hate into an actus reus necessary to support criminal convictions, where none of these things, logically, are criminal acts. And yes, I understand that hate is only an aggravating factor, but in adding years to a sentence, it functions much the same as convicting someone for an attempt that doesn’t mature into a “crime.”

“I imagine that you are factually incorrect that hate is being made into a crime.”

- Factually yes, hate is not actually a crime in and of itself. The double jeopardy argument comes from the fact that the state can try you for the actual crime, and if acquitted you can still be charged in federal court under the hate crime statute.

David Shaw October 30, 2009 at 4:16 pm

“The first point is that it would be silly to require police to wait for a harmful event to occur to be able to prosecute a perpetrator.”

- The true liberal response to this is- No, it wouldn’t be silly, it would be a properly functioning criminal law. To punish someone for something other than an actual harmful act is, by definition, to punish thought.

“What you are describing is no different that for any other crime. If that’s your beef, then it is with jury trials and our criminal justice system to begin with, not the peculiarities of the laws of attempt and conspiracy.”

- No, what I’m arguing is that these laws make “attempt” “conspiracy” and hate into an actus reus necessary to support criminal convictions, where none of these things, logically, are criminal acts. And yes, I understand that hate is only an aggravating factor, but in adding years to a sentence, it functions much the same as convicting someone for an attempt that doesn’t mature into a “crime.”

“I imagine that you are factually incorrect that hate is being made into a crime.”

- Factually yes, hate is not actually a crime in and of itself. The double jeopardy argument comes from the fact that the state can try you for the actual crime, and if acquitted you can still be charged in federal court under the hate crime statute.

AveSharia October 30, 2009 at 2:39 pm

This will be a response to both this comment and your comment above- sorry but I didn’t want to double-post some of the same thoughts.

The first point is that it would be silly to require police to wait for a harmful event to occur to be able to prosecute a perpetrator. I’m not saying that you can punish someone for considering, or even beginning to plan, a crime, but requiring the “harmful, criminal act” to occur has the obvious drawback that either police sit by and watch “harmful, criminal act”s occur, or the perpetrator gets off scot-free. There should be a middle-ground, and that middle-ground is the law of attempt (conspiracy is related). I don’t pretend to argue that the law of attempt and conspiracy are well-constructed and well-balanced, but they are constructed to strike a balance, which would be where I would focus my criticism, not in the existence of the charges in the first place.

“Couple that with the fickle nature of lay-jurors and you have a situation where it becomes increasingly likely that one will be convicted with no criminal mens rea, never mind an actus reus.”

What you are describing is no different that for any other crime. If that’s your beef, then it is with jury trials and our criminal justice system to begin with, not the peculiarities of the laws of attempt and conspiracy.

“But making it a crime to hate someone not only infringes on your freedoms of speech, association, privacy, etc, but it creates a double jeopardy situation that is patently unconstitutional.”

While I haven’t read the proposed hate-crimes legislation (and I don’t intend to- I still oppose it), I imagine that you are factually incorrect that hate is being made into a crime. Hate is being made an aggravating factor, just like malice aforethought is an aggravating factor in murder prosecutions. Just because something is an element of a crime, even a distinguishing element, doesn’t make it a crime itself. Otherwise, the entire field of intentional torts makes the intent to do just about anything a crime.

David Shaw October 30, 2009 at 2:13 pm

Correct, but they still don’t require that the harmful, criminal act occur. Yes they punish acts, but not the crime itself, only acts of preparation, which are not actually harmful to any other person. Couple that with the fickle nature of lay-jurors and you have a situation where it becomes increasingly likely that one will be convicted with no criminal mens rea, never mind an actus reus.

JohnK October 30, 2009 at 2:44 pm

>>Correct me if I’m wrong, but I believe the “pre-crime” charges you’re referring to are “attempt” crimes

The use of a weapon while committing a crime is one thing, but banning weapons because someone MIGHT commit a crime is another.
Getting all wacked out on drugs and going on a crime spree is one thing, but banning drugs because someone MIGHT commit a crime is another.

Hate crime laws make it a felony to think certain things while committing a crime.
What’s to stop the rationale for criminalizing guns and drugs for criminalizing those felonious thoughts?

JohnK October 30, 2009 at 2:44 pm

>>Correct me if I’m wrong, but I believe the “pre-crime” charges you’re referring to are “attempt” crimes

The use of a weapon while committing a crime is one thing, but banning weapons because someone MIGHT commit a crime is another.
Getting all wacked out on drugs and going on a crime spree is one thing, but banning drugs because someone MIGHT commit a crime is another.

Hate crime laws make it a felony to think certain things while committing a crime.
What’s to stop the rationale for criminalizing guns and drugs for criminalizing those felonious thoughts?

AveSharia October 30, 2009 at 2:57 pm

“The use of a weapon while committing a crime is one thing, but banning weapons because someone MIGHT commit a crime is another.
Getting all wacked out on drugs and going on a crime spree is one thing, but banning drugs because someone MIGHT commit a crime is another.”

Oh. I agree.

“Hate crime laws make it a felony to think certain things while committing a crime.”

This is true. So do murder laws, and theft laws, and just about every other kind of law there is.

“What’s to stop the rationale for criminalizing guns and drugs for criminalizing those felonious thoughts?”"

The same thing that stops the criminalization of guns: the Constitution. Of course, that’s sort of an empty answer; the Constitution itself doesn’t prevent anything, but maybe the small-”c” constitution does. The ultimate answer is any force you can name that already constrains government- so, the same thing that prevents them from making Catholicism illegal.

There, of course, is no constitutional provision preventing the criminalization of drugs, though I object federally on the same grounds I’ve stated above. I think it’s imprudent, and potentially an unconstitutional extension of the commerce clause, but not inconsistent with other such encroachments, and certainly not unconstitutional based on current precedents.

Anonymous October 30, 2009 at 3:40 pm

I think you have it quite backwards when you say, “There, of course, is no constitutional provision preventing the criminalization of drugs” and sadly that reflects the thinking of far too many people on what the constitution is.

The proper perspective is there is no constitutional provision authorizing the criminilization of drugs. That issue is clearly left to the states or the people. When alcohol was criminalized, the government recognized this limit on their power and sought an ammendment. Unfortunately, the constitution is all but totally ignored these days.

Anonymous October 30, 2009 at 3:40 pm

I think you have it quite backwards when you say, “There, of course, is no constitutional provision preventing the criminalization of drugs” and sadly that reflects the thinking of far too many people on what the constitution is.

The proper perspective is there is no constitutional provision authorizing the criminilization of drugs. That issue is clearly left to the states or the people. When alcohol was criminalized, the government recognized this limit on their power and sought an ammendment. Unfortunately, the constitution is all but totally ignored these days.

David Shaw October 30, 2009 at 4:19 pm

“This is true. So do murder laws, and theft laws, and just about every other kind of law there is.”

- Here you commit what economists and philosophers call the naturalistic fallacy. Just because the law does operate in this way doesn’t necessarily mean that it should. The only mens rea that should matter is intent. If you meant to harm someone’s body or property, and you did in fact harm their body or property, you have committed the crime associated with that harm. If the harm came about negligently then you have committed a tort that is the proper province of the civil courts, but you have committed no crime.

David Shaw October 30, 2009 at 4:19 pm

“This is true. So do murder laws, and theft laws, and just about every other kind of law there is.”

- Here you commit what economists and philosophers call the naturalistic fallacy. Just because the law does operate in this way doesn’t necessarily mean that it should. The only mens rea that should matter is intent. If you meant to harm someone’s body or property, and you did in fact harm their body or property, you have committed the crime associated with that harm. If the harm came about negligently then you have committed a tort that is the proper province of the civil courts, but you have committed no crime.

AveSharia October 30, 2009 at 2:57 pm

“The use of a weapon while committing a crime is one thing, but banning weapons because someone MIGHT commit a crime is another.
Getting all wacked out on drugs and going on a crime spree is one thing, but banning drugs because someone MIGHT commit a crime is another.”

Oh. I agree.

“Hate crime laws make it a felony to think certain things while committing a crime.”

This is true. So do murder laws, and theft laws, and just about every other kind of law there is.

“What’s to stop the rationale for criminalizing guns and drugs for criminalizing those felonious thoughts?”"

The same thing that stops the criminalization of guns: the Constitution. Of course, that’s sort of an empty answer; the Constitution itself doesn’t prevent anything, but maybe the small-”c” constitution does. The ultimate answer is any force you can name that already constrains government- so, the same thing that prevents them from making Catholicism illegal.

There, of course, is no constitutional provision preventing the criminalization of drugs, though I object federally on the same grounds I’ve stated above. I think it’s imprudent, and potentially an unconstitutional extension of the commerce clause, but not inconsistent with other such encroachments, and certainly not unconstitutional based on current precedents.

AveSharia October 30, 2009 at 1:58 pm

Correct me if I’m wrong, but I believe the “pre-crime” charges you’re referring to are “attempt” crimes, which are distinctly different from “thought” crimes in that they require a substantial, affirmative step towards the completion of the crime, in addition to corroborating evidence (so, enough to convince a jury) that you intended to commit it.

JohnK October 30, 2009 at 1:39 pm

The purpose of hate crime laws is to criminalize thought by attaching harsher penalties to certain acts depending upon what the perpetrator was thinking at the time.
We already have laws that criminalize “pre-crime” such as DUI laws, drug laws, and weapon laws. These laws punish people for what they MIGHT do, not for what they are doing.
Don’t be at all surprised when hateful (Politically Incorrect) thoughts become illegal because of what the individual MIGHT do.

BoscoH October 30, 2009 at 2:43 pm

Instead of naming these bills after well-known victims of hate-inspired violence, they should name them after camera whoring politicians. Case in point… Yesterday morning in Hollywood, there was a shooting of two Jewish people at a synagogue. Mayor (An)Tony(o) Villar(agosa) and councilmember for life Zev Yaraslovski held a press conference carried on all the local stations to condemn this possible act of hate, but asking all of us to hold our judgement until the facts were in. Turns out it was probably a run of the mill assault with a deadly weapon rather than a hate crime directed at Jews. People get shot daily in Los Angeles, and it’s rarely an opportunity for the mayor to stutter for 10 minutes on live TV. Think of hate crimes legislation in those terms, and expect prosecutors to pile on to build their political street cred. It’s all you need to know.

BoscoH October 30, 2009 at 2:43 pm

Instead of naming these bills after well-known victims of hate-inspired violence, they should name them after camera whoring politicians. Case in point… Yesterday morning in Hollywood, there was a shooting of two Jewish people at a synagogue. Mayor (An)Tony(o) Villar(agosa) and councilmember for life Zev Yaraslovski held a press conference carried on all the local stations to condemn this possible act of hate, but asking all of us to hold our judgement until the facts were in. Turns out it was probably a run of the mill assault with a deadly weapon rather than a hate crime directed at Jews. People get shot daily in Los Angeles, and it’s rarely an opportunity for the mayor to stutter for 10 minutes on live TV. Think of hate crimes legislation in those terms, and expect prosecutors to pile on to build their political street cred. It’s all you need to know.

SteveO October 30, 2009 at 2:44 pm

The silver lining; we finally have liberals admitting that punishment of crime is a disincentive.

AveSharia October 30, 2009 at 2:50 pm

Bingo!

AveSharia October 30, 2009 at 2:50 pm

Bingo!

SteveO October 30, 2009 at 2:44 pm

The silver lining; we finally have liberals admitting that punishment of crime is a disincentive.

Anonymous November 1, 2009 at 1:24 pm

This is very sad. America remained the last bastion of free speech even as EU adopted hate speech legislation.

Anonymous October 30, 2009 at 2:42 pm

You don’t have to know something is a crime to be convicted of it…

That to me is the heart of the problem.

Anonymous October 30, 2009 at 2:42 pm

You don’t have to know something is a crime to be convicted of it…

That to me is the heart of the problem.

AveSharia October 30, 2009 at 2:49 pm

I don’t think you really believe that.

If someone, say from another culture, does not know that honor-killing is a crime in the US, do you think they should be prosecuted for engaging in the practice on US soil? Or do you really believe that ignorance of the law is a defense thereto?

AveSharia October 30, 2009 at 2:49 pm

I don’t think you really believe that.

If someone, say from another culture, does not know that honor-killing is a crime in the US, do you think they should be prosecuted for engaging in the practice on US soil? Or do you really believe that ignorance of the law is a defense thereto?

JohnK October 30, 2009 at 3:37 pm

Harming another individual’s their life, liberty or property through force or fraud should be the only measure of criminality.

All criminal laws that violate that basic rule are the result of power seekers and lawyers with overactive imaginations, both of whom should be shot.

JohnK October 30, 2009 at 3:37 pm

Harming another individual’s their life, liberty or property through force or fraud should be the only measure of criminality.

All criminal laws that violate that basic rule are the result of power seekers and lawyers with overactive imaginations, both of whom should be shot.

Anonymous October 30, 2009 at 2:53 pm

Again, there is a difference between law and legislation; most of what is illegal is in fact legislation, it is not law. So yes, I really do believe that.

Anonymous October 30, 2009 at 2:53 pm

Again, there is a difference between law and legislation; most of what is illegal is in fact legislation, it is not law. So yes, I really do believe that.

Anonymous October 30, 2009 at 2:58 pm

Also, it should be no surprise that I make this distinction at a place titled “Cafe Hayek.”

Anonymous October 30, 2009 at 2:58 pm

Also, it should be no surprise that I make this distinction at a place titled “Cafe Hayek.”

AveSharia October 30, 2009 at 3:02 pm

Two points:

First, I think you’ve reversed “law” and “legislation” in your comment. Otherwise, I am thoroughly confused, because Hayek would argue that “what is illegal” is in fact law, even if not legislation. Legislation is only law if enforced; law is only legislation if codified.

As for really believing that ignorance of the law is defense thereto: your beef is not with this hate crimes bill. Your beef is with our Constitution, and the common law tradition. Hell, it’s probably even a beef with the entire Judeo-Christian legal tradition. I’m not sure ignorance of the law has ever been a defense, anywhere. If it has, not successfully so.

AveSharia October 30, 2009 at 3:02 pm

Two points:

First, I think you’ve reversed “law” and “legislation” in your comment. Otherwise, I am thoroughly confused, because Hayek would argue that “what is illegal” is in fact law, even if not legislation. Legislation is only law if enforced; law is only legislation if codified.

As for really believing that ignorance of the law is defense thereto: your beef is not with this hate crimes bill. Your beef is with our Constitution, and the common law tradition. Hell, it’s probably even a beef with the entire Judeo-Christian legal tradition. I’m not sure ignorance of the law has ever been a defense, anywhere. If it has, not successfully so.

Anonymous October 30, 2009 at 3:11 pm

Actually, Hayek did not argue that. He argues something quite different in Law, Legislation and Liberty.I’m not sure ignorance of the law has ever been a defense, anywhere.It isn’t ignorance of the law that is the issue; it is ignorance of legislation that is the issue. Again, this line of argument should not be particularly controversial on a blog named “Cafe Hayek.”

Anonymous October 30, 2009 at 3:11 pm

Actually, Hayek did not argue that. He argues something quite different in Law, Legislation and Liberty.I’m not sure ignorance of the law has ever been a defense, anywhere.It isn’t ignorance of the law that is the issue; it is ignorance of legislation that is the issue. Again, this line of argument should not be particularly controversial on a blog named “Cafe Hayek.”

AveSharia October 30, 2009 at 3:15 pm

I would be extremely intrigued if Hayek thought that legislation, enforced as written, was not law.

AveSharia October 30, 2009 at 3:15 pm

I would be extremely intrigued if Hayek thought that legislation, enforced as written, was not law.

Anonymous October 30, 2009 at 3:21 pm

Well, I would suggest that you drink from the work of the master, Hayek, not from his very unworthy student.

Also, Prof. Boudreaux did a podcast with Prof. Roberts on this very subject a year or two ago.

Anonymous October 30, 2009 at 3:21 pm

Well, I would suggest that you drink from the work of the master, Hayek, not from his very unworthy student.

Also, Prof. Boudreaux did a podcast with Prof. Roberts on this very subject a year or two ago.

AveSharia October 30, 2009 at 3:35 pm

Which I listened to. He has also blogged on the issue several times.

From the EconTalk archives:

“Law vs. Legislation: definitions. Legislation is consciously designed rules, enforced with threat of force. Law is emergent patterns of behavior that is incorporated into people’s expectations. Law can be enforced but is often not enforced. Legislation sometimes codifies law.”

This is precisely the distinction, common in legal literature, that I was making. To what were you referring?

Further, even if “ignorance of the law” was no excuse where “ignorance of the legislation” was (it isn’t,) my argument that tiered punishments for varying mens rea, including attempt and more recently, conspiracy, are consistent with not just the history of law, but also with common conceptions of justice, kind of moots your point.

AveSharia October 30, 2009 at 3:35 pm

Which I listened to. He has also blogged on the issue several times.

From the EconTalk archives:

“Law vs. Legislation: definitions. Legislation is consciously designed rules, enforced with threat of force. Law is emergent patterns of behavior that is incorporated into people’s expectations. Law can be enforced but is often not enforced. Legislation sometimes codifies law.”

This is precisely the distinction, common in legal literature, that I was making. To what were you referring?

Further, even if “ignorance of the law” was no excuse where “ignorance of the legislation” was (it isn’t,) my argument that tiered punishments for varying mens rea, including attempt and more recently, conspiracy, are consistent with not just the history of law, but also with common conceptions of justice, kind of moots your point.

AveSharia October 30, 2009 at 3:48 pm

Again, this standard has no basis in English Common Law. Not even on the day of the founding would a jury hold blameless a man who would have shot another, but was intercepted by authorities at the last minute.

AveSharia October 30, 2009 at 3:48 pm

Again, this standard has no basis in English Common Law. Not even on the day of the founding would a jury hold blameless a man who would have shot another, but was intercepted by authorities at the last minute.

Anonymous October 30, 2009 at 4:02 pm

Yes, those should be the only measures of criminality. But issues related to what can only be described as simple cultural prejudice always creep into the law as a means to control “deviant” behavior because such behavior, even if it be non-violent, not involved fraud, etc., is viewed as a threat to the social order and those that benefit from it. So you see laws against homosexuality, against usury, against interracial marriage, etc.

Anonymous October 30, 2009 at 4:02 pm

Yes, those should be the only measures of criminality. But issues related to what can only be described as simple cultural prejudice always creep into the law as a means to control “deviant” behavior because such behavior, even if it be non-violent, not involved fraud, etc., is viewed as a threat to the social order and those that benefit from it. So you see laws against homosexuality, against usury, against interracial marriage, etc.

AveSharia October 30, 2009 at 3:50 pm

Dave,

I appreciate that you think I had it backwards, but my very next sentence was intended to prevent that confusion. The provision that Congress uses to authorize banning substances is the Interstate Commerce Clause, which I agree is read too broadly. It, however, cannot be read to overpower the second amendment. There is no similar amendment for drugs. That was my point.

AveSharia October 30, 2009 at 3:50 pm

Dave,

I appreciate that you think I had it backwards, but my very next sentence was intended to prevent that confusion. The provision that Congress uses to authorize banning substances is the Interstate Commerce Clause, which I agree is read too broadly. It, however, cannot be read to overpower the second amendment. There is no similar amendment for drugs. That was my point.

Anonymous October 30, 2009 at 3:55 pm

Legislation “codifying law” is quite different from legislation which does not come from an organic source, and that is Hayek’s main argument as I understand it. …my argument that tiered punishments for varying mens rea, including attempt and more recently, conspiracy, are consistent with not just the history of law, but also with common conceptions of justice, kind of moots your point.Actually what they appear to be are areas which are grey enough that they allow the state enough leeway to convict nearly anyone of nearly anything.

Anonymous October 30, 2009 at 3:55 pm

Legislation “codifying law” is quite different from legislation which does not come from an organic source, and that is Hayek’s main argument as I understand it. …my argument that tiered punishments for varying mens rea, including attempt and more recently, conspiracy, are consistent with not just the history of law, but also with common conceptions of justice, kind of moots your point.Actually what they appear to be are areas which are grey enough that they allow the state enough leeway to convict nearly anyone of nearly anything.

AveSharia October 30, 2009 at 3:57 pm

This is an empirical question about which I simply do not believe you. You’re going to have to find at least a few examples where blameless people were punished for benign things… As it stands, I’ve never heard of a single judge or case that agrees with your interpretation of these laws.

AveSharia October 30, 2009 at 3:57 pm

This is an empirical question about which I simply do not believe you. You’re going to have to find at least a few examples where blameless people were punished for benign things… As it stands, I’ve never heard of a single judge or case that agrees with your interpretation of these laws.

Anonymous October 30, 2009 at 4:05 pm

There have been a number of books on the overreach of federal criminal law. These include “Three Felonies a Day” (Silverglate), “Go Directly to Jail” (Healy), etc. This isn’t some topic that no one has written anything on.

Anonymous October 30, 2009 at 4:05 pm

There have been a number of books on the overreach of federal criminal law. These include “Three Felonies a Day” (Silverglate), “Go Directly to Jail” (Healy), etc. This isn’t some topic that no one has written anything on.

Anonymous October 30, 2009 at 4:07 pm

There have also been a number of CATO podcasts which have dealt with this issue as well.

Now, I believe I’ve done my best to point you to the resources behind my position.

Anonymous October 30, 2009 at 4:07 pm

There have also been a number of CATO podcasts which have dealt with this issue as well.

Now, I believe I’ve done my best to point you to the resources behind my position.

Anonymous October 30, 2009 at 4:05 pm

Thanks for the clarification – a great many people just do not understand the nature of the constitution, so maybe I’m a bit sensitive on that point. I understand your position (but to say the commerce claus is read too broadly is an major understatement IMO). While not explicitly about substances, I think the 9th and 10th ammendments are very clear on this point.

Back OT, I also don’t like hate crime legislation for a number of reasons besides their unconstitutionality. One reason is they reinforce the group-identity thinking that leads to so many other problems.

Anonymous October 30, 2009 at 4:05 pm

Thanks for the clarification – a great many people just do not understand the nature of the constitution, so maybe I’m a bit sensitive on that point. I understand your position (but to say the commerce claus is read too broadly is an major understatement IMO). While not explicitly about substances, I think the 9th and 10th ammendments are very clear on this point.

Back OT, I also don’t like hate crime legislation for a number of reasons besides their unconstitutionality. One reason is they reinforce the group-identity thinking that leads to so many other problems.

JohnK October 30, 2009 at 5:21 pm

DK – fyi I glaze over your comments when I don’t skip them entirely. So feel free to ignore me because I really could care less about what you think about anything.

Anonymous October 30, 2009 at 5:48 pm

I wasn’t giving “what I think” I was pointing out a few places in the Constitution that are relevant. If you actually care about the questions you ask you may want to take a look. Otherwise I’m not particularly concerned if you read what I wrote or not.

JohnK October 30, 2009 at 6:01 pm

Then why did your post start with the words “I think”?

Don’t answer that, I really don’t want to know.

AveSharia October 30, 2009 at 6:05 pm

I have specifically stated that I agree federal criminal law is overbroad, but that is by virtue of an over-interpretation of the Interstate Commerce clause.

I wonder what your position would be on state-based hate crimes laws? If your argument is that hate crimes punish benign behavior inherently, the case should apply as well at the state level.

Anonymous October 30, 2009 at 6:06 pm

You make it so tempting when you directly tell me not to answer it.

“I think”, it seems to me, was expressing an uncertain understanding of a fact. It was not expressing a subjective opinion.

AveSharia October 30, 2009 at 6:19 pm

“One reason is they reinforce the group-identity thinking that leads to so many other problems.”

I agree.

AveSharia October 30, 2009 at 6:19 pm

“…properly functioning criminal law.”

Well I suppose that explains our disagreement. You view “proper” criminal law as being narrower than I, (apparently) david, and most, if not all, of the founders saw it. I view “proper” federal criminal law as very narrow, but only because I think local and state mechanisms work better to enforce criminal law, not because it is out of the proper scope to begin with.

“No, what I’m arguing is that these laws make “attempt” “conspiracy” and hate into an actus reus necessary to support criminal convictions…”

And this is incorrect. “Hate,” like “malice aforethought,” “intention,” and “knowledge,” are mental states, mens rea, of crimes. They, by definition, are insufficient to support a charge, just like every other crime with a mens rea component (so, every crime except strict liability crimes).

“…in adding years to a sentence, it functions much the same as convicting someone for an attempt that doesn’t mature into a ‘crime.’”

Wrong again, because the mens rea component requires an actus reas component, thus is must “mature into a ‘crime’.”

“The double jeopardy argument comes from the fact that the state can try you for the actual crime, and if acquitted you can still be charged in federal court under the hate crime statute.”

It is true that you can be charged twice, and we may call that double jeopardy, but the founders wouldn’t have, and it is not unconstitutional.

AveSharia October 30, 2009 at 6:22 pm

I would have committed the naturalistic fallacy had I argued that the law should be as it is- but I actually have pretty consistently argued the opposite. The statement of mine you quoted is not to justify hate-crimes laws, but to dispute the basis upon which we should oppose them.

“The only mens rea that should matter is intent.”

Why? If we can punish someone in Tort for negligence, why not criminal law? Certainly, the two are different, with different purposes, but I fail to see how punishing negligent behavior is antithetical to the deterrent and (traditionally) retributive purposes of the criminal law.

AveSharia October 30, 2009 at 6:40 pm

Mea Culpa for the double-response… I thought the first one disappeared, so I drafted the second…

Anonymous October 30, 2009 at 8:23 pm

Precisely? And, your words indicate that you think this is a good thing, is that true?

You think that this is what the founders intended with the trial by jury as a legal right? Do you think that this in accord with the founder instituted principle of Jury Nullification?

God help us!

Anonymous October 30, 2009 at 8:20 pm

Think what you like but it was written that way with that intent and it was ratified.

AveSharia October 30, 2009 at 8:36 pm

I find it interesting that you read approval into the word “Precisely” when I’ve gone through pains throughout this thread to state my disapproval of federal criminal prosecution that could be better handled at the state or local level.

AveSharia October 30, 2009 at 8:40 pm

Wow. I’m convinced.

Anonymous October 30, 2009 at 10:55 pm

I find it interesting that you were vague, leaving me to draw my own conclusions. As you were argumentative before, am I to decide you are now suddenly agreeable?

This:
“I’ve gone through pains throughout this thread to state my disapproval of federal criminal prosecution that could be better handled at the state or local level.”

may be true but is very vague on what you mean on the discussion of double jeopardy. Yeah, I agree crimes are better handled on the state level, but that does not preclude, in your seeming estimation, the feds stepping in and claiming a do-over when they don’t like the verdict.

The 5th amendment says what it says in plain language, it was discussed, approved, signed, ratified, is part of the constitution.

Goodnight I have plans for the rest of the evening, :-) .

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