Some illustrations of tyranny

David Neiwert recently left a comment to a post I wrote last week, which touched on the hate crime issue. Because I try to at least make a stab at being fair (possibly a bad idea in blogging) and I'm afraid readers might miss it, I thought it should be addressed in a new post.

Here's Mr. Neiwert's comment:

The Supreme Court has always been quite clear in its rulings that hate-crimes laws do not violate the equal-protection clause of the Constitution.

It's pretty clear why: The laws are written in a way that applies them across all sectors of society.

To illustrate: The four chief categories of bias motivation listed under most hate-crimes laws are race, ethnicity, religion, and sexual orientation.

It doesn't take much to realize that these are universal categories: everyone has a race, an ethnicity, a religion, a sexual orientation.

And indeed, if you check the FBI's annual hate-crime statistics, you will see that they are indeed generally applied evenly. Out of the 9,000 or so hate crimes reported every year, nearly 1,000 of them are anti-white hate crimes. Others include a large number of anti-Christian hate crimes, etc. The list goes on. The majority is protected by these laws just as assuredly as minorities.

Raging Bee, you have a very solid handle on this issue. And you argue well too. Thank you.

I disagree with David Neiwert about hate crimes (and also with his assessment of Raging Bee's argumentative style, for the latter is fond of putting words in my mouth and accusing me of dishonesty for not discussing what he wants discussed).

I keep saying that I am not running a debate forum here, but people who enjoy debates (which they probably imagine that people "win") don't seem to hear me.

And now I seem to be tasked (at their insistence) with arguing not with their position, but with that of the Supreme Court.

This is really a bit much. At the risk of being redundant, I do not write this blog to engage in debate or to be told what I must write about (least of all by someone best known in the blogosphere for his repeated attempts to tar Glenn Reynolds with a charge of racism). I don't have to address anyone's opinion, answer any commenter, and I am not here to be "accountable" to anyone. Nor is there any rule which says I should. If people disagree, they can say so, and if they don't like me, they can go elsewhere. I'm not obligated to do anything, even write this blog. I just say what I think, and what I think is my opinion. My opinions are not altered because someone has an opinion to the contrary.

I don't care whether the opinion to the contrary is held by a commenter, another blogger, or even the Supreme Court.

What David Neiwert accomplished above, by reciting what the Supreme Court may have held (and I am not about to wade through their opinions) was to advance an argument to authority. It ignores the point I am trying to make, which is that I think hate crime laws are tyrannical, and violative of Americans' right to equal protection under the law. At the risk of stating the obvious, I already know that those in authority disagree with me about hate crime laws. Otherwise, how could there be hate crime laws? Telling me that they disagree with my position on hate crimes is about as relevant as telling me that Leon Kass or his Commission disagrees with me on longevity or stem cells. It's the sort of thing which might interest people who enjoy debating, but I find it a little tedious.

Without getting into the endless nuances of the Supreme Court's holdings (which I have no intention of reading), I do think it's at least fair to point out why I don't attach much value to their interpretations of the Constitution. Time after time, the Supreme Court has upheld tyranny. Most people are familiar with the infamous Dred Scott decision, which upheld slavery laws, and held that the black man has no rights a white man must respect. There's Plessy v. Ferguson, which upheld deliberate segregation in accommodation by race. Korematsu v. United States, which upheld the internment of Japanese Americans based on their race. Most recently, in McConnell v. FEC (the McCain-Feingold case), the court upheld restrictions on free speech which had been passed by Congress in direct contravention of the First Amendment.

I recognize that the Supreme Court is an authority, and an authority with great power. But that no more makes them right than Leon Kass's position makes any of his opinions right.

Interestingly enough, even Neiwert has acknowledged that the Supreme Court can be wrong. In an individual case, what does its wrongness depend on? Apparently, not the "authority" of the Supreme Court itself. The variable seems to be whether or not Mr. Neiwert (or others he thinks are right) agree with it. Such a factor might be persuasive to him and to those who agree with him, but to me it's superfluous.

I'm sure that if Michelle Malkin (or someone taking a position in favor of internment) were to cite Korematsu in support of such a position, Mr. Neiwert would exclaim that the Supreme Court was wrong. That it reversed itself. Fine. I have just as much right to think the Supreme Court is wrong, and should reverse itself. For what it's worth, I think they were wrong in Korematsu, wrong in Dred Scott, wrong in Plessy, wrong about McCain Feingold, and wrong about hate crimes.

Let me illustrate by simple example why I think hate crime laws are wrong. I can't think of a simpler example than one used by David Neiwert: a swastika painted on a synagogue. Neiwert scoffs at the idea that this is mere vandalism:

Harsher sentences traditionally have been assigned to crimes committed with intentions and motivations considered more harmful to society at large.

Now, you may ask, are hate crimes more harmful than the crimes for which, as the editorial points out, there are already laws on the books? Well, ask yourself this: Is a swastika painted on a synagogue the same thing as graffiti scrawled on a downtown wall? Is an assault in which the perpetrators sought out gay or black people to send a "message" the same thing as a bar fight?

Are hate crimes truly different from their parallel crimes? Quantifiably and qualitatively, the answer is yes.

First of all, common sense tells us that a swastika on a synagogue is not the same thing as graffiti scrawled on a downtown wall. Any judge who did not sentence the swastika painter to the maximum term would be derelict in his duty. But that is a sentencing consideration; it doesn't change the nature of the crime, which (fortunately) manifested itself as graffiti instead of violence. If the legislature made it a crime to paint a swastika on a synagogue (without the consent of the synagogue, of course), that law would not violate equal protection. But criminalizing conduct based on the political beliefs of the offender does. Let's assume the swastika was painted by a street anarchist or agent provocateur with a view towards turning people against each other, or a Communist hoping the swastika would be blamed on neo-Nazis. Would not the synagogue's congregation be just as terrorized and oppressed? Suppose it was a Muslim who believed passionately that Israel is the moral equivalent of Nazism. Should he be treated differently than another Muslim who believed Hitler and the Holocaust were right? And further, should these Muslims be treated any differently than a white American skinhead? For the life of me, I cannot understand why.

In the absence of hate crime laws, these factors are sorted out by a judge as he decides what sentence to impose. Hate crime laws, though, would require an examination of the political views of the offender not in determining his sentence, but in determining his guilt. Politics becomes the basis of the offense. Thus, the anti-Nazi prankster would not be charged with a hate crime, while the skinhead would. I think they're both equally revolting and stupid, and equally offensive to the congregation so victimized.

How about a swastika or "God hates Republicans" painted on a Republican Party office? Who is to say that wouldn't be just as upsetting to them as "God hates fags" painted on a lesbian gay center would be to the occupants of the latter? (For what it's worth, I happen to think the "God hates fags" people are so ridiculous that they are discrediting the cause of anti-gay bigotry, and I am not intimidated by that silly slogan in the least. Who the hell has a right to tell me that I am, or should be?)

Suppose someone spray-painted a swastika on my house. Do I have to be Jewish in order to be a hate crime victim?

And why should the criminal have to be in actual sympathy with Hitler, anyway? Might it not be at least as offensive for a swastika to be intended to falsely associate someone with Hitler as it would for the same swastika to be proclaiming the author's solidarity with Hitler?

I think it is better to punish the crime, and not get into the politics behind it. To give another illustration, the ACLU defended the right of uniformed Nazis to march -- in full Nazi regalia, with Nazi flags, through the heavily Jewish retirement community of Skokie, Illinois. I would be willing to bet that some of the elderly Jews felt just as terrorized and oppressed as they would have felt had one of those same Nazis spray-painted a swastika on their synagogue. In fact, a good argument could be made that a uniformed marching group is far more oppressive than a lone coward wielding a spray can at night. Yet the elements considered off limits and irrelevant as protected free speech become an integral element of a new crime even though they are otherwise protected by the First Amendment? Am I alone in thinking this is an anomaly?

In ordinary life, however, there just aren't that many Nazis. But there are plenty of people who hate other people for a wide variety of reasons, and who might be inclined to commit crimes. Why should only some of these offenses be treated hate crimes, but not others? Typical hate crime laws limit their use to crimes committed out of hatred for a race, color, religion, national origin, sexual orientation or gender. But why stop there? Isn't it just as hateful to assault someone for being old as for being gay or for being a woman?

In the recent movie Crash (discussed infra), a pair of carjackers targeted only members of the white race, yet this was portrayed sympathetically, as if it made them morally superior to criminals who'd just carjack anybody's vehicle. Despite my problems with the film's credibility, assume for the sake of argument that a criminal only preyed on white people because he didn't want to harm members of his own race. Is this a hate crime? The fact is, many criminals select only those they consider weak -- meaning less capable of defending themselves. Is this hatred? Suppose a big tough guy deliberately selected women because he was convinced they were "easy" targets. Does the picture change if he only selected homosexuals for the same reason?

I think these laws invite institutionalized victimization, in which victims who can show they are "better" victims have a better chance at seeing their attackers punished. Old people and disabled people have to wait in line for now, as they just didn't make the grade.

If that isn't discrimination, I don't know what is.

And no! I am not advocating adding the elderly and the disabled to the hate crime laws. I just don't think creating new crimes based on which form of hate is deemed the most politically unpopular is good policy.

MORE: A New York phenomenon called "Chink bashing" led to a savage and deadly beating, which (according to Andrew Popper) was not treated as hate crime.

Apparently some victims of racist murder warrant more sympathy from the media than others. It is time that all victims of such vile hate crimes receive equal attention and that the evil hypocrisy of selective indignation is ended.
It was a brutal murder, and (regardless of the minority-versus-minority aspects of the crime) it should have been treated as a brutal murder -- regardless of which minority might have more political clout.

posted by Eric on 05.25.05 at 11:17 AM


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Classical Values :: Some illustrations of tyranny Eric has much to say in the post linked to above regarding so-called hate crimes. By and large I agree with him. Splashing a swastika on a synagogue really falls under harassment, and... [Read More]
Tracked on May 26, 2005 12:01 AM


Well put, and I agree. Crime is crime, regardless.

And thanks for bringing this up front, rather than leaving it buried in comments.

Greg   ·  May 25, 2005 5:04 PM

I'd figured you were closing discussion on this topic, Eric, but if not :) ...

Just one or two things carried over from the last thread: for one, the Gotcha! contention that arguments against hate crimes laws would also mean we can't have anti-terrorism legislation is ridiculous. What we call terrorism in practice is more specific than the dictionary definition. Anti-terrorism measures tend to focus on conspiracy, money laundering, illegal transportation of dangerous materials, the targeting of public servants or large groups of civilians, and plans to keep striking until political goals are met. The fewer of those characteristics you have, the less experts agree that what you've got should be considered an act of terrorism. There was even back and forth about whether the Unabomber, who was clearly making a sustained attempt to use fear and intimidation to further political goals, was a terrorist.

To say that the arguments used against hate crimes laws would also work against anti-terrorism measures, you have to believe in a de facto conspiracy (that the person who beats someone up outside a bar doesn't realize he belongs to), or that the "community" suffers in some essential way more than it does when a citizen is raped or murdered for non-politicized reasons. Bringing to the surface, say, racial tensions that are already there does not seem to me to be creating some kind of society-wide harm.

Sean Kinsell   ·  May 25, 2005 9:54 PM

Well reasoned. The entire idea of hate crimes brings in so many complications as to make it impossible to manage. Do pedophiles preying on children qualify since they target children?

From my experience when considerations other than the crime are considered we invite the government to reduce our liberty and freedoms. Such crimes only would serve to highlight our differences rather than emphasize our simularities.

TJ Jackson   ·  May 25, 2005 10:24 PM

..."I think these laws invite institutionalized victimization"...

Palahniuk's "Haunted" I'm told is a satire on professional victims. I've heard details but don't have the stomach to read it.

huggy   ·  May 26, 2005 10:27 AM

If the legislature made it a crime to paint a swastika on a synagogue (without the consent of the synagogue, of course), that law would not violate equal protection. But criminalizing conduct based on the political beliefs of the offender does.

As has been clearly and repeatedly stated in the last thread, the "political beliefs" of the offender are not the issue; the intent of the specific act is. Thus, a wandering drunk or troubled teen would get a lighter sentence than an adult who had a demonstrable intent to cause some sort of trouble. It's like a false alarm: your punishment depends on whether you sincerely believed there was a fire, or just wanted to make some noise.

I really don't see what you're so upset about. There's lots of laws that criminalize both an act and its "intent" -- as in "attempted murder," "possession with intent to distribute," "assault with intent to maim," "solicitation with intent to defraud," "making contact with a minor with intent to commit a lascivious act," etc. If there's some dire threat to liberty here, it's neither new nor evident.

Raging Bee   ·  May 26, 2005 10:48 AM

Major apologies for this off-topic post, but I figured you might be interested in this bit of anti-Pagan bigotry injected into a divorce case:

You want tyranny, collectivist thinking, and special rights? It's all in there. I also posted about it on my own journal.

Raging Bee   ·  May 26, 2005 3:10 PM

That is despicable of that tyrannical collectivist judge to give such an order, blatantly un-Constitutional, and I'm sure that it will not stand up in court when they appeal, if there is any pretence of fidelity to the Constitution left in the courts. "Non-mainstream", indeed. "The 'mainstream' of thought is a stagnant swamp." as Ayn Rand once said. Athanasius Contra Mundum. I am myself a Pagan, i.e., a Theological Reactionary, a Polytheist. I respect the historic Christian and Jewish faiths, and also atheists so long as they are anti-Communist.

As to the "hate crimes" you mentioned, I totally agree that a Communist is as bad as a neo-Nazi, an Israel-hating Muslim is as bad as a neo-Nazi "skinhead", and far more prevelant in certain milieus such as today's universities and mass media. Actually, Communism and Nazism are in essence the same thing, i.e., totalitarian collectivism. Neither overt neo-Nazis nor Communists are likely to take over in the United States while operating under the explicit banner of discredited foreign ideologies, but Communists work to undermine our military strength, and Holocaust deniers use "post-modernist" epistemology to exploit the growing historical ignorance among the young. The external military threat right now is from Islamic terrorism, while the long-term internal spiritual enemy is coming from certain elements which distort and use the historic Christian and Jewish faiths. These last are gaining influence within our government. A 2-dimensional spectrum is needed to deal with this problem. As to criminals, I agree that they must be dealt with as criminals.

Raging Bee:
"I really don't see what you're so upset about. There's lots of laws that criminalize both an act and its 'intent' -- as in 'attempted murder,' 'possession with intent to distribute,' 'assault with intent to maim,' 'solicitation with intent to defraud,' 'making contact with a minor with intent to commit a lascivious act,' etc."

The intention in those cases applies to something the accused was physically trying to do when interrupted or foiled through his own incompetence: the knife missed the victim's heart, the retiree figured out that the nice young man shouldn't need $25,000 prepaid in cash to clean the gutters, or the minor's mother caught the skeevy guy before he seduced her daughter.

What you're talking about with hate-crimes laws is not really comparable. It has to be decided whether a perpetrator seriously thought beating up one black man would send a signal to all American blacks that he thinks they should go "back" to Africa. It has to be decided when violence is "prevalent" enough to elevate hatred against a group of people to cosmic significance. That's hardly the same sort of thing as figuring out that the doctor had his hands around his wife's neck because he was trying to kill her.

Sean Kinsell   ·  May 27, 2005 2:04 AM

The intention in those cases applies to something the accused was physically trying to do when interrupted or foiled through his own incompetence...

That's not necessarily true. "Intent to distribute" is ascertained via specific circumstances (i.e., quantity of the substance, how it is packaged) without having to catch the suspect physically trying to distribute it. "Intent to commit a lascivious act" is ascertained by the circumstances under which the suspect tried to make contact with his intended victim, whether or not he's actually caught trying to commit such an act. The various degrees of murder (premeditated, non-premeditated, negligent) are distinguished by intent, which is ascertained by a wide variety of facts and circumstances that point to possible motives and predictable consequences.

Here's another example: if it can be proven that a person was murdered to stop her from testifying against a gang-leader, rather than as part of a robbery, then this murder becomes "worse" because the intent -- and the likely effect on others -- is not just to get a few bucks, but to obstruct justice, intimidate a whole community, and thus give gangsters more freedom to operate with impunity. In this situation, arguing that murder as part of a robbery should be treated the same as murder to enforce gang power, is sheer folly. Repeadely saying "murder is murder" and "treat crime is crime" ignores some painfully-obvious differences between different criminal acts that share the same official name. Laws that criminalize intent are an attempt -- perfect or not -- to recognize these differences and incorporate them into our judgements of guilt and punishment.

Raging Bee   ·  May 27, 2005 9:42 AM

Thank you for exposing yourself as a complete and total Jackass. I am so out of here.

It is pointless to argue with incincible ignorance, the true flower of tyranny.

David Howe   ·  June 1, 2005 12:20 PM

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