I sat on this a few days, and then decided to let it fly.
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One of the unfortunate aspects of our current overheated political discourse is that partisans too rarely police their own. Most of us, left and right alike, have hair triggers when it comes to blasting away at even the smallest nits on the arguments of our ideological adversaries, but we become disarmed pacifists when someone on “our side,” i.e., the side of the angels, crosses over the line of good sense or good taste. There are exceptions, of course — such as when conservatives led the posse that rounded up Trent Lott — but in general we’re all guilty to various degrees of double standards in political debate and discussion.
In an attempt (all too rare, as I’ve just admitted) to practice what I’m preaching, I’d like to take issue with some comments in a recent townhall.com article by Paul Craig Roberts.
First, as indicated by the title, “Kiss Your Rights Goodbye,” the article is an overwrought reaction to what Roberts fears the Supremes might do in the Michigan racial preference cases. Better to wait till they do what they do, read it, and then criticize it as required rather than get your shorts all tied in a knot by something that hasn’t happened yet.
According to Roberts, “the Michigan case (sic; there are two cases) will determine whether ‘preferred minorities’ are admitted on the basis of merit or on the privilege of skin color.
No, they won’t. It is possible the Supremes may decide whether preferences based on race are allowable, but it is not possible for them, in these cases, to decide that all admission decisions must be based on “merit,” however merit is defined. Excluding race as a factor in admissions does not exclude every other conceivable factor except merit. In fact, it does not exclude any other factor.
Roberts writes that if “whites lose equal protection, they will be subject to new classes of laws, such as ‘hate crimes,’ that would apply only to the behavior of whites.” Again, this is rhetorical hooey. If racial preferences are upheld, the equal protection clause — and the “without regard” non-discrimination principle on which it rests — will have been seriously dented, but even that dire result would not mean whites have lost equal protection, at least not altogether. Nor would it automatically become true that hate crime laws would apply only to the behavior of whites. That is not true now, and it would not necessarily become true in the wake of a Michigan victory on preferences.
Next, Roberts trashes what does indeed sound like a terrible column in Business Week by Stan Crock. (That article is not online yet, but when it is you can find it here.) If Roberts’ description of what Crock says is true, then its argument — that the 14th Amendment protects only minorities — is indeed, well, a crock. But Roberts is not content to criticize the contents of Crock’s crock. I’m not a prude. I wouldn’t rule out a little personal invective every now and then (how about “Crackpot Crock,” or “Cracked Crockpot”?), but Roberts seems to need to be the Chicken Little of the Right, claiming the sky is falling every time a dark cloud drifts overhead. Thus:
Do you think a Business Week correspondent came to these convoluted legal arguments on his own? To a former old Washington hand who spent a quarter century “inside the Beltway” in government, journalism and think tanks, Crock’s argument smells like one planted by a clerk to a Supreme Court justice, whose agenda is to strip white Americans of equal protection in order to dump our merit-based system into the trash bin of history and replace it with equal outcomes dictated by the judiciary.
….
There is nothing to prevent a legally privileged group from dispossessing second class citizens — especially when immigration is turning the “preferred minority” into a “preferred majority.” If Crock’s article is based on a Supreme Court leak, white Americans have no future.
Does Roberts have any evidence beyond the fears of his own fevered imagination that Crock is the mouthpiece for some Supreme Court clerk? This is truly bizarre.
Well, maybe Crock isn’t a clerkly mouthpiece. Maybe he’s the ghost of John Rawls, come back to haunt conservatives everywhere.
You have to wonder how far along this road we are when Business Week magazine publishes an article that says white Americans have less constitutional protection than “preferred minorities.” Isn’t this the triumph of the Harvard philosopher John Rawls, who argued that the only policies that can be justified are those that favor the least well-off?
Again, no, it isn’t. No time (or ability) for a Rawlsian seminar now, but Rawls never argued “the least well off” are all black.
The evidence is pretty compelling that Paul Craig Roberts really does exist. If it weren’t, it would be easy to conclude that he’s a caricature drawn by liberals to discredit all critics of racial preferences.
Similar points about Paul Craig Roberts by Eugene Volokh.
BTW, I’m not aware of any reason that “hate-crime” laws would only be used against whites, except Roberts’ racist paranoia.
Now hold it.
Look, I agree that Paul Craig Roberts is no great shakes. Concluding, on no evidence, that some random Business Week article represents content “planted” by a Supreme Court clerk is simply bizarre. But the idea that the 14th Amendment protects only black equality and doesn’t confer similar rights on whites is not a crazy-fringe idea, and Roberts didn’t make it up.
Prof. Jack Balkin, for one, whose blog you’re probably familiar with, has argued several times that a truly originalist reading of the 14th Amendment does _not_ yield the colorblindness principle of, e.g., Justice Harlan’s Plessy v. Ferguson dissent. The idea is out there in the law reviews. It is a reasonable subject of concern.
Also, Mr. Lazarus, maybe Roberts’ remarks merit an easy accusation of racism, but if so, it’s not because of his point about hate crime laws.
There’s all sorts of information out there that shows that blacks commit violent crimes against whites at highly disproportionate rates — there is way more black-on-white violence than white-on-black violence.
Be honest. Admit that if we had a comparable epidemic of unexplained white-on-black violence, prosecutors would easily assume racial hostility was the motivation for much of it, and you would see masses of hate crime prosecutions of whites, and the enactment of new hate crime laws in jurisdictions that now lack them.
Well, if the same standard were applied fairly to the actual patterns of racial violence in America today, we should expect to see a large number of prosecutions of black criminals for hate crimes.
We do not see this.
http://www.frontpagemag.com/articles/Printable.asp?ID=1388
“The Bureau of Justice Statistics estimates that in 1999, there were about 657,008 black-on-white crimes of violence, as compared to some 91,051 of the white-on-black variety. Yet although black-perpetrated interracial crimes outnumbered white-perpetrated interracial crimes by a ratio of about 7.2 to 1, the official hate-crime statistics showed white offenders outnumbering black offenders by a 4 to 1 margin. Put another way, about 1 out of every 45 white-on-black attacks is classified as a hate crime, while the corresponding fraction for black-on-white attacks is an astounding 1 out of 1,254.”
Hence people like Mr. Roberts conclude, with some justice, that governments use racial double standards in enforcing hate crime laws, and thus that such laws amount in practice to imposing special, heightened punishments on whites. Which is injustice.
The argument I’ve sketched is known to most of Roberts’ readership and was presumably the background for his remarks.
As I read it over, I suppose I don’t really disagree with John about anything of substance. Roberts is a sloppy thinker and much of his rhetoric is divisive; I don’t think he contributes much to the principled opposition to racial preferences either.
I just wanted to point out that the “black equality” view of the 14th Amendment, which John described as a “crock,” is nevertheless not a fringe view. It is more or less how Justices Brennan and Marshall viewed the Amendment, for example, as Brennan’s Bakke opinion makes clear. And Brennan got four votes, for better or worse.
As I also tried to suggest, Mr. Lazarus is wrong if he thinks Roberts’s view of hate crime laws is unsupported.
Plainsman, state hate crime laws don’t equal the 14th Amendment. If they did, they could scarcely encompass crimes based on religion or sexual orientation, which some do.
Indeed, your own post shows that there were hate crime prosecutions of blacks against whites, just not in the number you expect statistically. Leaving aside the question of whether hate crime laws are used disproportionately against whites (I can think of reasons that would at least partially explain the discrepancy without recourse to the reverse racism I think you imply), the existence of even one black-on-white case ends the Constitutional argument.
I’m sorry, but that’s wrong.
Under classic 14th Amendment doctrine, such a suit would turn on the facts of hate crime prosecutions in the jurisdiction in question: can the plaintiff show discriminatory intent? And while the massive “disparate impact” in the statistics I’ve cited (there are lots of others) would not establish discrimination by itself, it is powerfully consistent with such a claim, and might form a persuasive backdrop when coupled with some depositions of federal or state officials.
Cf. “sure, we used restrictive practices over a period of years to keep 99% of nonwhite would-be home buyers out of our neighborhood, but we let two such applicants in back in 1998, so that ‘ends the constitutional argument,'” to use your words. No, it doesn’t.
And of course the 14th Amendment encompasses religious discrimination. Religion is a suspect classification; strict scrutiny applies. “At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U.S. 900 (1995).
I must also say that I found your response to the statistics I cited (paraphrasing, “well, just because you think it’s disturbing that governments are _twenty-seven times_ more likely to classify white-on-black assaults as hate crimes than the (much more frequent) black-on-white assaults, it doesn’t establish anything,”) to be limp. That’s an extraordinary statistical anomaly. It requires explanation.
I’ll add that quite apart from Roberts’s issue of whether one could litigate to victory a 14th Am. EP claim against various jurisdictions with hate crime statutes, statistics like the ones I posted throw grave doubt on the simple fairness of such measures as typically applied, and provide a reason to vote them down.
Plainsman – Thanks for your comments. All of them! The statistics you provided on interracial crimes of violence and hate crime prosecutions were especially interesting.
You raise another interesting issue, and, as luck would have it, you do so right at a point where I fear I may have been less than clear. Let me try again: I do believe the argument that the 14th Amendment protects only minorities is “a crock.” It is of course true that preferentialists believe the 14th Amendment does not require colorblindness — that it did not originally, and does not now — but I believe that most of them would not go so far as to say that the equal protection clause applies only to minorities. There is too much Constitutional water over the dam (damn?) for that argument to, well, hold much water.
What I find especially interesting here is that, alas, I believe that preferentialists like Jack Balkin (for whom I have enormous respect, even though I think he’s wrong about preferences), are, unfortunately, correct when they argue that the original understanding of the 14th Amendment did not require color-blindness. Now, the good news is that this shouldn’t make them feel any better than critics of preferences, because it requirs them to say that on this crucial point Plessy was correctly decided.
Let me quote myself, from a comment (Dec. 7, 2002) on one of my earlier posts:
… I would like to note what I think is an under-appreciated irony (this is the road-show appearance of what may be a full-fledged post in the future): without realizing it preferentialists … actually agree in substantial part with the majority in Plessy, and that majority in turn was actually correct about the original intent of the 14th Amendment.
The old abolitionist radicals — Wendell Phillips in the Senate, Thaddeus Stevens in the House, and their allies — tried but failed to include a strict colorblind standard in the 14th. They were defeated by the moderate and conservative Republicans who insisted on the vague an amorphous “equal protection” language precisely because it allowed discrimination that was thought to be reasonable.
History, like politics, makes strange bedfellows, and today’s conservatives who insist on colorblindness are echoing the arguments of dead, failed radicals, while today’s liberals reject colorblindness and endorse what they regard as reasonable racial distinctions — echoing the Plessy majority who were in turn faithful to the original intent of the moderate/conservative Republicans who dictated the language of the 14th. (Much, but not all, of the above based on one of the very best books on all this, THE COLORBLIND CONSTITUTION, by Andrew Kull.)
Liberals these days tend to fall back on original intent only when it’s convenient, as it is here. But conservatives who believe in original intent as a matter of principle will have trouble with color-blindness.
Plainsman,
Sorry to come late to the party, piece of your discussion of the 14th Amendment relating to the statistics of black-on-white crime (June 8, 1:27am) obscures more than it illuminates. I speak as somebody with recent first-hand experience.
Were we assaulted because of some racialist calculus in the young hoodlum’s mind? Well perhaps, but it’s simpler to assume that he thought my wife’s purse had cash in it.
Would extra melanin have protected us from this black-on-white crime? Again, perhaps, but since most crime in this city is black-on-black, that’s a poor bet.
Regarding this adventure, I have much in common with other victims, white and black, of other punks, white and black. I am unclear how this specific incident or your generalizations on street crime contribute to understanding of the Equal Protection Clause. (Re. the legal system, more competent cops and Asst. DAs would have been nice. That’s another story.)
Plainsman, you are mix and matching arguments here. Let’s just suppose that you are right, that the correct explanation for the disproportionate number of whites charged with hate crimes is some form of reverse racism. I think that’s possible although I don’t think it’s 100% correct [I think there are a lot of cofactors that probably explain much if not all of the statistical anomaly, but, for purposes of argument, I’m waiving this defense.]
You have moved away, though, from a defense of Paul Craig Roberts, whose untenable claim is quite different, that hate crimes statutes are aimed “only” at whites.
I concede that a white charged with hate crimes could use these statistics in an attempt to prove unequal and unconstitutional enforcement of the law. However, I am not willing to concede that this makes the law unconstitutional, any more than I would concede that possible unequal enforcement of the traffic laws (“Driving While Black”) makes the speed limit unconstitutional.
And I’ll throw out as a question: Why couldn’t hate crimes be established by states under the police power, quite irrespective of the 14th Amendment, even before the passage of the Amendment (if they had so desired)? Certainly the enhancement of sentences for criminal actions because of a particularly evil motive is a longstanding tradition, not least in degrees of homicide.
Andrew: I’m not going to interject into the ongoing discussion except to ask a question. And let me preface it with this disclaimer: I don’t know the answer.
In your concluding sentence, you mention motive as a traditional enhancement in sentencing (for homicide as an example). It was my understanding (from only the perspective of laity) that these enhancements were drawn from degrees of malevolent INTENT rather than MOTIVE. This being a significant distinction, to be certain.
For example, Ted Bundy was shown a seat because he intentionally and sadistically murdered several women without remorse, not because he was motivated by his fear of rejection and feelings of sexual impotence. I don’t believe the latter even entered the legal venue, except for perhaps a psychiatrist’s report.
If there truly is a longstanding tradition of divining motive (rather than intent) and sentencing accordingly, could you provide some background? What motives have been legally proscribed, specifically? Is greed acceptable, though envy not? Has simple bloodlust been classified as better or worse than, say covetousness?As mentioned above, I plead ignorance beforehand to save you the trouble of pointing it out.
Stuart, I’m not a legal historian, or even a lawyer, but consider distinctions between capital and non-capital murder. At least here in California, for example, murder for financial gain is specifically included as a capital crime [so are many other types of murder that aren’t related to motive]. According to a detective story I once read, the French statute (before repeal of capital punishment) had a similar clause.
Admittedly, California’s current death penalty statute dates from 1977, but I wonder if it repeats practice from further back? So, at least theoretically, couldn’t we make murder for political or racial-intimidation purposes a capital crime, leaving vanilla murder as a life term?
Andrew: Thanks for the information. I had no idea that California–or any other state–specifically identified a motive (other than the ludicrously amorphous “hate”) in sentencing. I was surprised and disapointed to hear that. So if a burglar doesn’t take any money after chain-sawing a family’s heads off, it’s not quite as bad as if he had. Disturbing.
As for your last question, Constitutionally I suppose it’s permissible from a federalism perspective. Morally though, I think it’s standing in quicksand. I doubt that if your wife/daughter/mother were murdered it would seem at all vanilla to you, and it would certainly be no crime of lesser consequence than a similar one motivated by some statutorily proscribed inducement.
How about this one: A black man and white woman are walking hand in hand. A skinhead takes exception to this and attacks them with a knife—killing both. His intent and actions were identical for both victims, yet theoretically the murder of the black man is “worse” because it was motivated by “hate.” Now tell the grieving parents of the woman why her life was worth less in the eyes of the state. I really can’t imagine that this is a sane path for our legal system to take.
Hey, Stuart, the robber with the chainsaw is up for capital felony-murder either way. But I did see the “financial gain” clause used in a case where a murderer committed the crime to hasten an inheritance. (It was also a multiple murder, so there was a second capital enhancement.)
Your second point is a good one, and maybe we should think how to draft laws to avoid it. But it’s not that good. My versions:
An interracial couple tries to rent a hotel room. A bigoted hotelkeeper refuses because of their race. Only one member of the couple has a civil rights action!?
An interracial couple’s ballots are torn up by a bigoted voting registrar. As I understand it, only one member of the couple has a valid Federal civil rights action (although both certainly have valid state actions).
That’s a lot of generally accepted baby going out with the bath water.
Now, your example poses a serious problem, but I think that should be weighed against a serious interest we have in enhancing penalties for deliberately anti-black, anti-white, anti-Semitic, etc. crimes (whether murder or ripping up a ballot). These are crimes not only against person, but to the extent they incite racial hatred, either for revenge or in solidarity by other members of the racist groups, they threaten society at large in a way that many ordinary murders do not. See under Ireland, Israel, Sri Lanka, etc.
Would it be too egregious to mention the reduced penalties for murder of a spouse caught in flagrante delicto? But I don’t know of any jurisdiction where this was ever officially codified.
Andrew: Our chain-sawing fool is up on capital murder anyway? Based on what? There was no bias, hate, or political statement being made. He was simply a misanthrope with time and power tools. Your words: “So, at least theoretically, couldn’t we make murder for political or racial-intimidation purposes a capital crime, leaving vanilla murder as a life term?” What makes this a non-vanilla murder? His indecorous means of dispatch?
On the 2nd points, you’ve slid from hate crimes to civil rights offenses on me–unless you consider the latter to be an example of the former (in which case, the law would have ventured into tautology). But just for arguement, in the case of the racist black innkeeper, I think the answer is NEITHER has an action, at least in practical terms. Discrimination by blacks is, like sodomy, a crime only on paper, but not on the ground. Whites, you see, are not a “protected” class and are the only politically acceptable victims of discrimination or violent inter-racial crime (see again Plainsman’s statistics); and as far as college admissions are concerned, you can add Asians to that as well.
Now, you make a completely fair case as to the compelling state interest in enhancing penalties for these incendiary violent crimes. It just doesn’t transcend the insidious ramifications of “hate” legislation. Which, sadly, I have no more time to expand upon at the moment. Thanks for the enjoyable parley.
yw
Perhaps I watch too much police drama on television, but it certainly doesn’t seem too difficult for police and prosecutors, as experienced human beings, to divine motive/intent.
I am not one of those blackfolks who believe that we possess some superhuman skill at recognizing racist animus against us. It’s a simple skill, like any other, honed with use. Plaintiffs are given standing before the law because they are reasonable people. So if I can see a racist offense coming, why should I be silent about it? Why should the law? Given that racist animus can be observed and given the legal weight of ‘proximate cause’, there is nothing special about hate crime except the late date at which, in this country, it has been implemented.
What I want to bring up about equal protection is the matter of the Reginald Denny case. I’m one of those who believe that the most blatant abuse of equal protection involves blacks and despised immigrants with regard to police protection. Specifically with regard to blacks, the systematic lack of police protection they have recieved in this country has sustained a distrust and fear of police in black neighborhoods from coast to coast. That there is such a phenomenon known as ‘black on black crime’ underscores the reality that the political mainstream considers the black neighborhood a separate arena of crime – something that can and should be isolated. As a matter of political interest, increasing the numbers of police on the street is more a border enforcement rather than a tide that lifts all boats. So what happened to Reginald Denny is shocking. Where were the police? Right where they ‘belonged’, elsewhere.