HATE CRIMES POLITICS

WHAT’S UP WITH THIS?

(This is a longer, SO-oriented version of a Post on my other site.)

McClatchy Newspapers reports that the Dems have just pulled off a shrewd and not-uncharacteristic bit of legislative magic: they have tacked onto a vital defense appropriation bill an amendment that will constitute the enabling legislation for an expansion of the federal hate-crimes law.

It’s become a sleazy bit of standard operating procedure on the Hill, tacking on stuff that you want but that you don’t trust the Congress to pass to a larger, more complex, but absolutely essential bill. This is basically the gambit of piggy-backing what is often totally unconnected material, and obviously material that is uncertain of passage on its own merits, to something that absolutely has to pass quickly, and which enjoys a strong chance of passage.

Congressfolk often do this with appropriations bills – where a little ‘pork’ amendment gets lost in the shuffle to get major budget provisions passed. But it’s expanded now to include the type of ‘pork’ that is actually, I would call it, pander-pork: something not necessarily fiscal, but that you have to provide because you or your Party have ‘promised’ it to certain vocal Advocacies and lobbies, who will take out their ‘hurt’ on you and the party in very public venues if they don’t get what they want. And what you promised them.

In this case, it’s a bill to further extend the federal hate-crimes laws.

As always in these types of mania-law, the new legislation is carefully calibrated to generate a wave and a cloud of emotion, so that nobody will be tempted to really think about the law, or so that nobody will dare to object to it at the risk of being labeled ‘insensitive’ or as a ‘hateful’ person or as a ‘hater’ … and so on.

A vivid case – not always serious but in this case serious indeed – is made the occasion of the law. In this matter, it is the brutal murder of the young gay college student, Matthew Shepard, a decade ago in Wyoming. Having somehow attracted the attention of some ‘straight’ guys at a bar, he was taken out to a remote field, beaten and mutilated, and strung up on a fence and left to die. It was a truly reprehensible crime and no decent, mature Citizen can but be angered and saddened that this sort of thing can happen. We are a flawed species, although I am not pretending that that’s news. Or should be.

And as added insurance, the bill is named, telegenically, the “Matthew Shepard Hate Crimes Prevention Act”. As with so much of the sex-offense and ‘violence’ legislation, the name of the occasioning victim is tacked on to remind you that Correct sensitivity demands your immediate acquiescence and approval. Otherwise you’d best keep your mouth shut. Sort of like naming a law “An Act for the Protection of Nation and People” (“Reich und Volk” in the German original) – you sort of know that you’re going to make a lot of trouble for yourself if you say anything that indicates doubt or hesitation about the law.*

Senator McCain – for whom I hold no brief whatsoever – stated that it’s greatly disturbing to see the Senate (Democratic) leadership “take a totally non-relevant, all-encompassing and controversial piece of legislation and put it on a bill that is as important to the nation’s security as this legislation [the appropriations bill] is.”**

But of course, since everybody on the Hill has been doing this, for pork or pandering, for quite some time, the Dems can simply smile as if butter wouldn’t melt in their mouth and claim that a) this is ‘normal’ procedure for the Hill and b) the Republicans have done their share of it.

Lost in the shuffle is any consideration as to whether such a practice – let alone the Shepard Act itself – should be considered ‘normal’ in any sense at all. The whole idea of a democratic politics in a deliberative democracy in which mature voters vote for mature representatives is that major proposed laws get major serious deliberative treatment in their own right, after which they are enacted or not-enacted.

This is where I think there is an interesting straw in the wind. It appears that there has been a great deal of difficulty in getting the hate-crimes extension accepted as a good piece of legislation. Yes, the Dems claim that this is merely due to Republican tactical obstructionism and that the Republican objections deserve no respect or even hearing, since it’s all just ‘politics’.

But I don’t think that’s all there is to it.

As with the violence and sex-offense legislation – which I call mania-law – We are beginning to see, finally, widespread and major concern, even by those professionals in law enforcement, mental health, and public policy, who must enforce them. And even by groups representing the ‘potential victims’ on whose behalf the laws are being rammed through.

We cannot rule out the possibility that at long, long last democratic and deliberative politics is starting to demonstrate its built-in ability to correct itself.

We recall that the last time this happened was with the McCarthy-ite stampede (hysteria, truly) against hidden Commies among us, roaming freely and masquerading as nice folks. Nobody who grew up watching B-movie matinees on Saturdays back in the day can fail to recognize the alien pods that walk around in human form and must be exterminated.

But back then McCarthy and his stampede could be stopped relatively quickly. Before him, on a much more limited basis, the internment of Japanese-Americans in the deserts of the West in 1942 ran on for just several years, and was then quietly ended. Although not before even the Supreme Court affirmed its ‘legality’ and before irreversible and profound damage was done to the life and livelihood of thousands.

Not so with much of the mania-law of the past few decades, which has kept expanding for a number of years. The reasons for this are several, all inter-connected. First, the media now no longer provide accurate facts, but simply accept faxes from the public-relations personnel and paid public-opinion manipulators of both the government and the lobbies of both Right and Left. At this point, the mainstream media (MSM) have for wayyyy too long simply been printing the faxes as ‘reports’, hoping to keep their ‘consumers’ of either a Right or Left proclivity ‘happy’. The idea of a reporter actually ‘informing’ Citizens accurately has been repudiated by most of the MSM (see Glenn Greenwald’s excellent observations on Walter Cronkite’s death here).

And talk-radio has replaced ‘deliberation’ and ‘thinking’ with juvenile outbursts of sass and vitriol that provide much heat but little light (to use Lincoln’s image).

Second, under the influence of allegedly brilliant philosophers (such as John Rawls) the Branches and the advocates and the self-proclaimed ‘experts’ and the lobbies and all the Beltway gang a) believe themselves to be ‘elites’ that ‘get it’, b) that The People does not exist, but only ‘people’ who are lumps that ‘just don’t get it’, c) that therefore in the interests of this or that ‘emergency’ and the sanctity of their presumedly ‘good’ cause pols, bureaucrats, and even jurists can and must steer the popular herd toward whatever broad sunlit uplands of perfection (perfect safety, perfect security, moral perfection) their elite instincts dictate, and d) that in this ‘good’ cause the Constitution and democratic politics have become ‘quaint’ if not actually tainted, perhaps irretrievably.

Which is a theory of government that Lenin and Hitler and Mao could love. And did. (Not so much Stalin, who really didn’t bother with public opinion – he simply eliminated any person or group of persons (the intelligentsia, the bourgeois, the kulaks, even the Old Bolsheviks) who did or might disagree with him).

This approach to politics is one of the great viral infections that survived the destruction of their great nurturing laboratories (Nazi Germany, the Soviet Union, Fascist Italy, Maoistic China) and went on to infect the Allies of the West who, to all military purposes and appearances, had ‘won’.

Third, the Branches of the government are now so deeply enmeshed in their prior support for the stampedes – and perhaps still benefit from them – that they are actually still supporting them, against the corrective tendencies of democratic and deliberative politics. The political Parties, led by the Democrats but later joined by the Republicans, embraced ‘feeling’ over ‘thinking’ and thus set themselves on the path of an irrational, anti-rational politics of manipulating public opinion by inflaming public emotions and actually undermining deliberation and thought.

At this point, ‘pain’ and ‘outrage’ have so largely been allowed to trump sober and mature deliberation that few among the Branches can figure how to back away without being accused of ‘insensitivity’ and other ‘outrageous’ betrayals. Truly, in Jefferson’s vivid imagery describing the national adherence to slavery, the Beltway now “has a wolf by the ears”. ***

And so there is now in place – which has not often been seen in Western democracies – the lethal dynamic wherein the government itself is trapped into trying to prevent a ‘correction’ that would save and restore a democratic and deliberative politics. This is not an ‘experiment’ – not any more than running Titanic alongside a berg and ripping open a third of her hull could be characterized as an ‘experiment’ in ‘progress’ to see how well she would hold up.

Of course, ‘experiments’ on ‘undesirable life forms’ was a major element of totalitarian medicine in both the German Reich and the Japanese Empire, under the justifiying ‘emergency’ - of course – of ‘war’. The government doctors reported much ‘progress’ for that period when they were “dress’t in a little brief authority”. Afterwards, they said they were only following orders or serving a ‘higher law’ of ‘knowledge’ and 'progress'.

So on top of actually having to try to stop a stampede, We are now bethump’t by a government that in many ways is trying to continue it.

So there’s good news and bad news. The good news is that there is a palpable sense that the stampede is starting subside, through the healthy working of Our democratic and deliberative politics. But the bad news is that the Beltway and the Branches are so mired in the stampede – to their own political benefit – that they are still trying to keep it going.

Interesting times indeed.

It is of especial interest to the SO community in that there now appears to be a growing hesitation among lawmakers in regard to all of this mania-law.

The reasons may not be pure and simple legislative and constitutional maturity.

First, maintaining all of the new requirements (IF a State decides to accept the laws’ requirements and forego the small sums in Law Enforcement Assistance funds it will forfeit if it doesn’t) not only creates a permanent expenditure of tax funds, but also a consistently increasing expenditure as well. And with the national economy in deep trouble, which may only be in an early phase of a multi-phase downturn that may become permanent, State legislators are now faced with something of a dilemma. They have ‘advocates’ and their lobbies on one side, but now undeniable financial realities on the other side. And AWASORNA clearly demonstrates that rather than ‘subsiding’, the SO laws are actually intensifying and expanding. National legislators cannot ignore this reality.

Second, advocates as well as law enforcement types are now pointing out that the expansion of SO-registration requirements (especially the increases mandated by AWASORNA) is actually reducing the effectiveness of ‘tagging’ truly dangerous individuals. (Of course, there are really not so many such individuals ‘out there’, a ‘numbers’ problem that the original stampede-pushers did not want the public to realize back then, and surely don’t want the public to realize now. And since so many of the ‘child’ incidences take place within the family-and-acquaintance circle, neither law enforcement nor politicians want to turn this entire machinery upon so large a group of ‘voters’; going after the ‘friendless and dangerous stranger’ was far more politically acceptable a strategy.)

Third, the ‘regulatory not punitive’ legal fiction cannot be assumed to hold up much longer. Although many courts are still parroting the Supreme Court decision in Smith v Doe, yet courageous and honest individual courts are still issuing Decisions indicating that the Registration and Notification requirements are indeed ‘punishment’.

Some courts are taking the high-road and finding that the requirements have been – in effect even if not in legislative intent – ‘punishment’ from the very beginning. Others are starting to state that the requirements, while constitutionally acceptable back at the beginning, have now “evolved” to the point where they do indeed constitute ‘punishment’. This is a dynamic area of SO jurisprudence where much can happen.

And in this regard, it’s important to recall (see my Post on Smith v. Doe on this site) that the 6-3 Supreme Court split in upholding the constitutionality of SO laws included a Concurrence by Justice Souter to the effect that he considered it a 50-50 possibility that the SO laws were indeed unconstitutional by reason of constituting ‘punishment’ – and that the only reason he was voting with the majority was his desire to respect the clearly (and shrewdly) made assertions by State legislators that their ‘intent’ was not to ‘punish’ but merely to provide for public safety. Had Souter not allowed his ‘respect’ for legislators’ public statements to override his otherwise acute awareness of the problems with SO law, the split would have been 5-4.

So there is much reason for hope in this still very unsettled, fluid, and dynamic area of the constitutionality of SO laws, as well as the fiscal viability of SO laws and the growing awareness – even by law enforcement and advocates – that the expansion is now actually weakening their intended effects.

NOTES

*Certain laws, such as the recent Adam Walsh Sex Offender, Registration, and Notification Act, actually have almost every section named after an individual victim, and even a paragraph describing the crime against the victim in question. Then, ominously, each of the sections, content-wise, introduces sweeping new requirements, many of which are not only eerily and disturbingly close to old European ‘internal passport’ and ‘criminal passport’ laws, but have already generated wide Constitutional doubts. They will also generate huge and ever-increasing costs to States that agree to implement them, even as law enforcement and even victim-advocate groups express alarm at the complexities of enforcement and the watering-down of effectiveness in somehow ‘tagging’ truly dangerous persons.

**Lest I be misinterpreted here as being in favor of hate-crimes, or as being ‘soft’ on hate-crimes, let it be noted that there are already State laws in place that criminalize all such crimes. This is a federal-level law that not only adds an unnecessary layer, but actually shades into interfering with the Constitutional rights of States (under the Xth Amendment) to formulate and administer their own laws.

Things have gotten to this point because the national legislature – under the influence of vote-desperate Parties – tried to guarantee reliable voter support for themselves by putting themselves forth as the primary ‘protectors’ and ‘avengers’ of this or that favored group. Thus Obama’s recent ominous if well-intentioned assertion that his first responsibility is to “protect the American people”. He is not Lord Protector; he is President and his oath requires him – as it did the egregious frak Bush – to “preserve, protect, and defend the Constitution” – which almost appears to be, frighteningly, as distasteful to him as it was to his treacherous predecessor.

***If you are close enough to the wolf to be holding it by the ears, then you can’t let go without getting your face and head bitten off.