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Punishing the Politically Incorrect
As we read further in The Declaration of Independence we come to the enumerated reasons why "The history of
the King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment
of an absolute tyranny over the states." They include:
"He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment
of their salaries."
"He has erected a multitude of new offices, and sent hither swarms of officers, to harass our people, and
eat out their substance."
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged
by our laws, giving his assent to their acts of pretend legislation."
In the weeks just before the Fourth of July, the U.S. Senate passed the Local Law Enforcement Enhancement Act of
2000 by a vote of 57-42. This measure, which is to be attached to the defense appropriations bill, expands federal
jurisdiction to investigate and prosecute hate crimes. The Act extends basic hate crime protections of the existing
law - race, religion and national origin - to include sexual orientation, gender and disability. The vote on the
underlying defense bill has been put aside for the moment and no corresponding measure has been scheduled for a
vote in the House.
Opponents to the legislation have raised three points.
First, the bill establishes an unconstitutional dual prosecution system - one for what people do and a second
for what they think. Our historical jurisprudence has been geared to punishing actions. We have always viewed laws
that punish thought, independent of action, to be the mark of a tyrant because crime becomes politicized. By fiat,
some victims receive more government protection than others. For example under the proposed legislation, the mugger
of a protected person is to receive greater punishment that the mugger of an un-protected person based on the court
determining the motive at the time.
Second, the federal government supercedes the state and places the accused in a constant condition of double jeopardy.
The Supreme Court has already ruled that a judge alone cannot determine a hate crime but only a jury. To prosecute
a hate crime, five things are required:
- Testimony from character witnesses
- Testimony concerning past expressions of hatred and intolerance by the defendant
- Testimony concerning the significance of personal characteristics, such as hostile tattoos
- Testimony concerning the thoughts and beliefs of known associates
- Opinion testimony from experts such as psychologists concerning motivation
Laws such as these generate witch-hunts tend to become a way of making a moral judgements not on just actions
or even intentions but beliefs. The "moral" requirement becomes one of correct belief. Condemnation and
punishment become focused on correct or incorrect beliefs, not good or bad deeds. It was this kind of reasoning
that held it to be Galileo's moral duty to confess the orthodoxy of the day that the earth was at the center of
the universe.
Third, such laws are redundant. All 50 states have statutes on assault, battery, manslaughter, sexual abuse and
murder. In the two cases sighted as reasons for immediate action, the accused have been found guilty and given
the maximum sentences their states allow - execution and life without parole.
Why is the political agenda of the national press focused on this legislation? According to Dr. Kelley Ross, it
is because the advocates of hate crime legislation see crimes as political, not moral, in nature. Those who disagree
are to be punished, not simply persuaded. "Hate" becomes a code word for those violating a certain political
program. The solution being offered is to increase the punishment in order to reduce incorrect political consciousness.
Is this just legal blather, silly academics or is it important to our future? The Southern Baptist Convention -
which has a membership of 15.8 million and more than 40,000 churches nationwide - has been told by the Council
of Religious Leaders of Metropolitan Chicago not to come there next summer because their plans for evangelism could
contribute to a climate conducive to hate crimes.
This Fourth of July weekend has also seen a proposal by the socialist government of our Revolutionary ally France
to imprison "proselytizers" for up to two years. The same Southern Baptist Convention was included in
measures to restrict the growth of 173 blacklisted faiths where a legal infraction could be found if they engage
in "mental manipulation."
"Such a bill", French Justice Minister Elisabeth Guigou said, " is a significant advance in giving
a democratic state the legal tool to efficiently fight groups abusing its core values." The bill defines the
intent of the legislation as "aimed at reinforcing the criminal repression of associations or groups to be
regarded, because of their criminal activities, as troubling public order or being a major danger for human personality."
King George couldn't have put it better.
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| George Mason, 1725-92, was known as the Sage of Gunston Hall.
His Virginia declaration of rights, written in 1776, was the model for the first section of the Declaration of
Independence. A friend of Patrick Henry and Thomas Jefferson, Mason was an original drafter of the Constitution
and the first ten amendments to the Bill of Rights. He refused, however, to sign the final version of the Constitution
because he thought it did too little for individuals and, without the Bill of Rights, gave too much power to the
government.This column honors his memory. |
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