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The Limits of the Law
Two quotations from John Adams came to mind as I was thinking about hate crime legislation most recently added to the military appropriation bill pending before the Senate. (See STR's Solid Ground July 2004 "Why Hate Shouldn't Be a Crime" - registration required).
We can all agree, obviously I think, that hate is a vice, some of us would say a sin. It's something we'd want to discourage, but what is the best method for doing that? Very often in our society of thin ethics, we resort to the law as the first and sometimes only option. But our Constitution wasn't meant to govern all aspects of society. The Founders recognized not only the limitations and dangers of governmental power, but also recognized that some attributes of man are just not accessible to governmental control. Chief among these are our beliefs, thoughts, and emotions.
The Constitution was written from a "thicker" view of reality, one that didn't rely only on the law but other sources of formation and guidance to build good citizens. I think this goes to the heart of what is wrong with the notion of "hate crimes." This seems the only alternative in a culture that has rejected religion as a robust source of personal and conscience development. In fact, the scientism that influences our culture trivializes conscience, morality, and belief to chemical and physiological events - nothing real that can actually help build good citizens.
"We have no government armed with power capable of contending with human passions unbridled by morality and religion... Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
"We have no constitution which functions in the absence of a moral people."
Bottom line: We are responsible for governing our own thoughts, beliefs, and hearts, not the government. There are just some things the law cannot do without becoming a tyrant.
John Adams and most of the founding fathers certainly assumed religion to be a significant part of life in the world in which they lived. But, of course, the world has changed since then and I would agree the change is due in large part to scientism and other self-destructive ideologies.
But I would add a couple of comments.
First, I suspect that, when Adams said that a system of laws only functions in a society of moral and religious people, he intended “moral and religious” to mean a minimum standard necessary for ordered liberty. We may interpret his words to mean that the constitution works or works best in a society of Bible-believing Christians. But he probably intended something more along the lines of—those who collectively fear God and obey the laws. Society as a whole must value these things, but not every individual. The very notion of law suggests the potential for disorder. There always will be those individuals who will need correction and punishment. Although the Constitution primarily sets forth the rules of governance and, so, is different from criminal statutes, it still is a system of laws that requires only a minimum standard of acceptance by the majority of people.
And this brings me to my second comment. Because there will be those who break the law, the government is entitled and even has the obligation to do something to maintain order. While the government often can’t dictate what we think and feel, it can regulate our behavior and actions. And, when behaviors and actions reveal discriminatory motivations and purposes, then the government can impose a more severe penalty that is commensurate with the crime. For example, if a group of boys went to a man’s house and beat the man and vandalized his property—they would receive a certain penalty. But the point of is, they probably deserve a more severe penalty if certain additional facts were known: the boys were members of a white supremist gang; the man was black; and the boys spray-painted swastikas all over the man’s property. Hate crime legislation is directed at this type of conduct. By the way, legislation often has catchy titles, but “Hate” just means “Anti-Discrimination.” The government can’t tell us who to love or hate, but it can pass laws to combat discrimination (whether certain things are properly included as suspect classifications is a different question altogether).
Yes, legislation is not always the solution. But what’s the alternative? Do nothing?
And one last thing—maybe the government wouldn’t have to pass laws to maintain some minimum standard of morality if the church did a better job of exemplifying Christ.
I must agree with you and with Adams. In general, human laws should penalize external acts, not thoughts or emotions. We do require "intent" in the law, and distinguish malice, negligence, and other states of mind. But all of these are determined based on external actions.
Too often today "hate crime" laws are realy designed to prevent criticism of certain life styles or sins. I do not think that is what human law is really for. Naturally if someone hurts another human being without justification or excuse, they shopuld be penalized for that crime. But the favorite sins of the victim should not be relavent.
The alternative is, yes, to do nothing. A man who would break into a home and vandalize it is already operating on hate. White supremacists or Toucan Sam supremacists, it shouldn't matter what their personal beliefs are in said situation. Besides, what would we say to the one who tells us it is acceptable in his culture to do such a thing? Would it not be "hateful" to tell them they are incorrect?
Furthermore, how do we define "hate"? By penalizing anyone who merely says homosexuality, adultery, or lying is wrong?
Such laws are extraordinarily dangerous.
Furthermore, how do we define "hate"? By penalizing anyone who merely says homosexuality, adultery, or lying is wrong?
Exactly, Miss O'Hara. It is not necessarily wrong to hate; it’s what we are hating and why!
Hate can actually be a good thing. If one hates a certain kind of wrongdoing because one knows how wrong it is, one can turn away from it when one is tempted to do it.
Clearly, many types of actions are interpreted differently by different people. For example, a child may interpret Mom or Dad's legitimate "no" as a hateful action, when of course it's not. But, as Melinda suggests, when there is no basic, clear-cut understanding and acceptance of what is harmful and what isn't, then you have a free-for-all. People will just define and label things to their perceived advantage and accuse others accordingly. Although sometimes there are legitimate misunderstandings, this type of manipulation is really very childish.
(I had problems posting this yesterday, here it is again:)
I think most of would agree that certain laws, particularly penal statutes, are grounded on some moral principles. In enacting such laws, we are in a way legislating morality. So the question is not whether we will legislate morality, but whose morality are we going to legislate. And whenever laws are grounded on moral principles, the danger is not so much a lack of consensus, but that our laws will reflect a degraded standard of morality.
I still would support federal hate crime legislation. I think a person’s discriminatory motive, if evident by his actions, should be punished or should be punished with a more severe penalty. In California, if the jury finds that the crime was committed for discriminatory reasons, the court may impose a sentence enhancement. Criminal law and sentencing is complicated, but these types of things already are a part of the analysis—at least under state law.
In my first comment, I alluded to the fact that it may not be appropriate to include homosexuality as a suspect classification. But I would admit that it’s a closer call than, say, whether homosexuals are entitled to marry or, even, whether they are entitled to the rights granted through a civil union. It’s a closer call because any discriminatory motive makes the act more culpable. We may think that homosexuality is wrong, but we still would find offensive crimes committed against gays or lesbians because of their sexual orientation. But I guess the question is whether homosexuals should have special protection as a suspect class—and, to this question, I would say no.
