OK, I'm just finally getting around the mind-warp that is the Bush Administration's veto threat (pdf) on the Matthew Shepard Act. Apparently, they've decided to become Constitutional scholars. This administration has expressed nothing but disdain for the Constitution throughout its existence, by illegally wiretapping Americans without a warrant, implying that "The privilege of the Writ of Habeas Corpus shall not be suspended" means that it can in fact be suspended because it didn't say "never", and exercising an already declared unconstitutional line-item veto/executive lawmaking ability through "signing statements", among other things. But now they're oh so concerned about the rules. It'd make me laugh if it weren't for the fact that they're doing it just because they have to appease their hate crime lovin' base.
The statement's Constitutional argument is that it violates federalism by usurping state authority to fight crime:
There has been no persuasive demonstration of any need to federalize such a potentially large range of violent crime enforcement, and doing so is inconsistent with the proper allocation of criminal enforcement responsibilities between the different levels of government.
Well, that's balogna and they know it. The hate crimes law has been around since the 60's and hasn't been declared unconstitutional yet. This new bill increases the scope of the law, of course, but the idea of punishing hate crimes more stiffly has been around for nearly half a century.
This bill wouldn't federalize law enforcement in the way that the administration is implying.
It: 1) provides funding for help for local law enforcement to prosecute these crimes, 2) allows for an increased penalty for these crimes if they're already being prosecuted at the federal level, and 3) provides funding to track hate crimes nationally. The second needs to be done at the federal level. The third should be because no state is capable of putting together those kinds of statistics.
But the first, while it would have made the legislation questionable in the eighteenth century or the early nineteenth, is well within the appropriate scope of the Constitution now. Considering that Congress is constitutionally allowed to "provide for the [...] general Welfare of the United States" and "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers", that allows the Congress to help the states out. And if the Bush administration had a problem with that interpretation of those clauses, then they shouldn't have fought for a law that forced standardized testing into every American classroom even though education is traditionally a state issue, provided funding to fight home-grown terrorism to the states (if we're going to run around pretending it's the late-1700's, then why not leave domestic terrorism up to the state militias?), and funded abstinence-only education (that's education and health care, both traditional state issues).
The other part of this statement that chaps my hide is this:
H.R. 1592 prohibits willfully causing or attempting to cause bodily injury to any person based upon the victim's race, color, religion, or national origin, gender, sexual orientation, gender identity, or disability. The Administration notes that the bill would leave other classes (such as the elderly, members of the military, police officers, and victims of prior crimes) without similar special status. The Administration believes that all violent crimes are unacceptable, regardless of the victims, and should be punished firmly.
I don't know any way to read that other than as that silly argument that hate crimes leg gives some victims more protection that others. Even though, you know, it doesn't say that a crime should be classified as a hate crime based on whom the victim is, but on the nature of the crime. We already punish some crimes more firmly than others, like murder moreso than burglary, armed robbery moreso than unarmed, possession with the intent to sell moreso than without intent. Hate crimes are intrinsically more severe than a parallel crime
, so they should be punished more firmly. In fact, in Wisconsin v. Mitchell
, the Supreme Court decided that hate crimes legislation did not violate the Fourteenth Amendment and did not give certain people more protection than others in a 9-0 decision
. Yeah, that included Scalia. So now the Bush administration is to the right of Antonin "there is no right to sodomy" Scalia.
But I have a suspicion that if white, straight, Christian men were the primary victims of hate crimes, this debate would have been over a long time ago.