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More equal
Hate-crimes provision assaults the Constitution

Date published: 7/30/2009

By lderly white

ALL KINDS of mischief can happen when the public is distracted by cap-and-trade, health care reform, cash-for-clunkers, and a dizzying array of other ideas being generated daily by an overcaffeinated Washington. Late one night a couple of weeks ago, Senate Majority Leader Harry Reid slipped into a must-pass defense-spending bill a little provision that deserves your attention.

It's the Senate version of a new "hate crimes" act. The amendment (which, of course, has no link to defense spending) would dump extra jail time on people convicted of a violent act perceived to be based on sexual orientation, gender identity, or disability--victim categories that would enlarge the now-protected classes of race, color, religion, and national origin.

The Senate measure resembles a House bill passed in April. Both establish special classes of victims and so disturb the 14th Amendment, which declares that any state may not "deny to any person within its jurisdiction the equal protection of the laws."

For example, under Mr. Reid's proposed hate-crimes measure, a man who assaults a transgendered person could be charged with "hate"; but if he beats an elderly white person the penalties would be less severe, because old age and whiteness are not protected classes. Thus the law would establish the relative value of a victim.

Adding "hate" as a motivation for a crime can also elevate many mundane criminal cases into a zone where the penalties are so stiff that innocent defendants are afraid not to plea-bargain, writes Ohio State law professor David Goldberger. How is this an ideal of justice?

When the Virginia Statute of Religious Freedom was passed, James Madison wrote to Thomas Jefferson, "We have in this country extinguished forever making laws for the human mind." He was wrong. Today what you think--or what prosecutors think you may think, can get you into big trouble.

Mr. Reid's hate-crimes provision and similar bills are yet further assaults on the U.S. Constitution, whose shield is supposed to protect all citizens equally. That's the real crime.