Monday, March 21, 2011

Cohen: Hate-Crime Laws are "Totalitarian Nonsense"

Almost as bad as hate crimes themselves is the designation. It is a little piece of totalitarian nonsense, a way for prosecutors to punish miscreants for their thoughts or speech, both of which used to be protected by the Constitution (I am an originalist in this regard).

Richard Cohen, writing in the Washington Post.

I've written on this subject before. It is a critical First Amendment issue. Cohen is widely considered to be a liberal, so this piece demonstrates that the "hate crime" issue transcends the Left-Right ideological divide (In the previous piece I referenced a voice from the Right - George F. Will.) Because of what I consider to be the profound importance of this issue, it is well to elaborate on it further.

First of all, the whole concept is absurd. The concept “hate crime” logically implies some other types of crime. What exactly are non-bigotry motivated crimes like rape, serial murder, armed robbery, or Ponzi theft, - expressions of love? The whole concept “hate crime” is a laughable absurdity, except it is incredibly dangerous.

Hate crime laws are taken straight out of the collectivist playbook – they represent punishment for hatred for a particular group (gays, blacks, immigrants), not the individual victim. A “hate” criminal is tried not just for his actions against his particular victim, but for his alleged animosity towards the group identification of his victim. As Cohen points out, the principle involved here is a license for prosecutorial aggression.

But the longer-term danger is much graver. As of now, punishment for one’s motivating ideas are tied to an actual crime. A hate crime conviction results in punishment added to that related to the action – for the perpetrator’s thoughts. However, it is inevitable that thought will one day be severed from the action completely. Why not, some future entrepreneurial prosecutor might ask, punish the thought before it turns into an actual crime? Why not, indeed, some “activist” future judge might concur.

Once any thought becomes criminalized, then all thoughts – i.e., ideas – cease to be an unalienable right. They then become the property of, and exist only by permission of, the state. Since thought is the precursor to individual human action, it logically follows that action may be taken only by permission of the state, since one’s actions are to be judged – at least in part - by the ideas that motivate them.

The broad sweep of the term “hate crime” is chilling. For example, free market opponents of the welfare state are routinely demonized as enemies of the “weak”, and harbor a callous disregard for “the poor, the elderly, the sick, and the children”, or whoever fits the latest definition of the “needy”. What’s to stop some future statist administration from arresting pro-capitalist activists and charging them with a hate crime against some needy group? Nothing except time. No modern politician can get away with that sort of thing today, but principles drive human events and, coupled with precedents, drive legal evolution.

Bigotry, of course, is cruel and evil. Opposing hate crime law in no way should be taken as a sanction for it. Rather, defending the individual’s right to his own ideas, however wrong-headed, is a defense of every other person’s right to theirs. To do less is to invite tyranny, because it is just through such sores on society that the virus of statism infects the body of a free society. The principles and precedents underpinning hate crime legislation empowers government to criminalize any ideas it deems unacceptable. And coercive power that extends beyond that which is legitimately required to carry out its sole duty to protect individual rights, once accrued to government, will be exercised sooner or later, unless repealed. The power of political censorship is embedded in hate-crime legislation. It is impossible to say how long it will remain dormant, but it won’t forever.

Cohen is perfectly accurate in ascribing the term “totalitarian” to hate crime legislation.

Also see George F. Will: Hate Crime Laws.

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