Nationalizing Crime
by George W. Liebmann

The endorsement by the Washington Post and too many ‘liberals’ of the proposed ‘hate crimes’ bill exists in strange juxtaposition with recent articles and editorials on the U.S.Attorneys scandal revealing the abuse and over-centralization of the existing system of federal law enforcement. The significance of the proposed bill is not found in the ludicrous ‘log-rolling’ leading to the inclusion of women and the disabled as well as ‘gays’ as new categories of protected persons, but rather in its dilution of constitutionally mandated requirements of criminal intent, which would potentially ‘federalize,’ or rather nationalize, almost all crimes of violence and associated words .

The dangers of this sort of vagueness are why the Supreme Court in 1812 refused to allow federal courts to define ‘common law crimes’ since the ensuing body of law would be "much more extended" and "in its nature very indefinite." "Behind the decision", according to one historian, was:

the concern that nonstatutory crimes would not be defined with sufficient particularity and could be made instruments of political repression...In retrospect it is obvious that the common law of crimes was a potent political weapon wielded by the party in power against its opposition...political leaders could and did use the doctrine of common law crime to stifle the opposition press and perpetuate themselves in office.

Both the Roosevelt court in Screws v. United States and the Warren Court in United States v. Guest stated that the federal criminal civil rights laws would be unconstitutionally vague unless circumscribed by specific intent to deprive a victim of a federal constitutional right. Without this, Justice Douglas said in Screws, the law " lacks the basic specificity necessary for criminal statutes under our system of government " Justices Frankfurter, Jackson and Roberts further cautioned that even as limited, the statute has dangers:"a ‘policy of strict self-limitation’ is not accompanied by assurance of permanent tenure and immortality of those who
make it the policy. Evil men are rarely given power; they take it over from better men to whom it had been entrusted. There can be no doubt that this shapeless and all-embracing statute can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined."

This supplies sufficient answer to the weasel words in the hate crimes bill about consultation with states. The obvious dangers to free speech which gave rise to Jefferson’s successful opposition to federal common law crimes are also present in the ‘hate crimes’ bill, and are revealingly sought to be avoided by statutory exceptions which must be invoked and proven by defendants. Prosecutions under the bill would thus involve a witches’ brew of controversial questions.

This “hate crimes” bill should be held up to law students as a model of bad draftsmanship, and any presidential candidate of either party voting for it should be deemed disqualified thereby.

George Liebmann, a Baltimore lawyer, is the volunteer Executive Director of the Calvert Institute for Policy Research and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005).