As for congressional findings that violencernagainst women affects the economy,rnthe Fonrth Circuit refused to givernthem “absolute deference.” In the end,rnfederalism carried the day, as the right tornbe free from “gender animus” and the accompanyingrnprivate cause of action werernstruck down.rnThe Supreme Court has already grantedrncertiorari and will soon be reviewingrnBrzonkala. If upheld, as it should be, itrnwill mean the demise of the Hate CrimesrnPrevention Act of 1999, which is thernchild of Sen. Edward Kennedy and thernusual congressional suspects.rnThe dragging death of James Byrd inrnJasper, Texas, and the robbery-turnedmurderrnof Matthew Shepard in Laramie,rnWyoming, provided much of the impetusrnbehind the proposed hate-crimes legislation.rnAlmost every supporter of thernHCPA explicitly referred to the incidents.rnPresident Clinton described therndeaths as teaching “us how easily prejudicerncan erupt into violence.” JanetrnReno remarked that they “show oncernagain that we [the federal government]rnmust do more to fight hate crimes inrnAmerica.” Byrd’s daughter, while participatingrnin a news conference with SenatorrnKennedy, applauded the HCPA because,rnunder the legislation, perpetratorsrnof hate crimes “will pay the price.” Thesernsupporters of the HCPA completely ignoredrnthe fact that the murderers of Byrdrnand Shepard were rapidly brought to justicernby state law enforcement officials.rnByrd’s killer was sentenced to death, andrnShepard’s killer received two consecutivernlife terms. How federal law will extract arnhigher price is unclear. The judicial systemsrnof the several states, accounting forrn95 percent of all prosecutions nationwide,rnare still capable of bringing lawbreakersrnto justice, as they have since therncolonial era.rnIn offering her support for an earlierrnversion of Kennedy’s legislation, formerrnSen. Carol Moseley-Braun describedrnhate crimes as “especially troubling” becausernthey:rnsend a message to all members of arncommunity that they are not free tornwalk the streets, to own property, orrnto enjoy their fundamental rights asrnAmericans simply because of howrnthey look or what they believe.rnBut whether a crime is motivated by haternor not, members of a community are aptrnto feel that their lives, liberties, and propertiesrnare less secure than before. A sanernsociety would realize that criminal actionrnitself is an evil, whether the motivation isrnprejudice or rapacity.rnPerhaps the most disturbing remarksrnin favor of Kennedy’s legislation camernfrom Sen. John F. Kerry. Kerry averredrnthat “true citizenship belongs only to anrnenlightened people, undeterred by passionrnor prejudice—and it exists in a countryrnwhich recognizes no one particularrnaspect of humanity before another.” Kerry’srnmessage is clear. The unenlightenedrnof society—those who disapprove of certainrnlifestyles or habits —cannot be truerncitizens. The Christian who teaches hisrnchildren that homosexuality is againstrnGod’s Commandments is hmiped togetherrnwith the criminal who murders arnman because of his sexual preference.rnSenator Kennedy’s HCPA differsrnmarkedly from current federal hatecrimesrnlegislation. Current law prohibitsrninterference with six specifically enumeratedrnfederally protected activities on thernbasis of a person’s race, color, religion, orrnnational origin. The activities are: enrollingrnor attending a public school orrncollege; participating in services or activitiesrnprovided by state or local government;rnapplying for or holding a job; servingrnas a juror in state court; traveling; andrnenjoying public accommodations.rnThe HCPA adds a provision to currentrnlaw prohibiting intentional infliction ofrnbodily injury (using fire, a firearm, or explosiverndevice) based on the victim’srnrace, color, religion, or national origin.rnTo fall under this provision, the victimrnneed not be participating in a federallyrnprotected activity.rnSimilarly, another provision prohibitsrnintentional infliction of injur)’ using fire,rna firearm, or explosive device based onrnthe victim’s gender, sexual orientation, orrndisability. Again, the victim need not bernparticipating in a protected activity, butrnthe offense must affect “interstate or foreignrncommerce.”rnUnder both new provisions, onlyrnfelonies may be prosecuted, and the JusticernDepartment must certify that “a prosecutionrnby the United States is in thernpublic interest and necessary to securernsubstantial justice.”rnLike the VAWA, the proposed hatecrimesrnstatute contains a number of findings.rnThe HCPA claims that hate-crimesrnaffect interstate commerce “by impedingrnthe movement of members of targetedrngroups and forcing such members tornmove across state lines to escape . . . violence,”rnand “by preventing members ofrntargeted groups from purchasing goodsrnand services, obtaining or sustaining employmentrnor participating in other commercialrnactivity.”rnThe government is abusing its powerrnto regulate commerce in order to enact arncriminal statute. According to AlexanderrnHamilton in Federalist 17, “the ordinaryrnadministration of criminal and civil justice”rnunder the Constitution is “thernprovince of the State governments.”rnNevertheless, Senator Kennedy’s responsernis that “[w]e must stop acting likernwe don’t care —that somehow this fundamentalrnissue is just a state problem. Itrnisn’t. It’s a national problem.”rnOf course, following the logic of thernHCPA, all criminal conduct could be arn”national problem” that substantially affectsrninterstate commerce. The SupremernCourt rejected this approach in Lopez,rnand the Fourth Circuit followed suit inrnBrzonkala. li Brzonkala is upheld by thernhigh court, the provisions of the HaternCrimes Prevention Act regarding gender,rnhomosexualify, and disability will enjoy arnquick death. If the Violence AgainstrnWomen Act exceeds Congress’s powers,rnthen surely the HCPA provisions also exceedrnthe scope of the Commerce Clause.rnCritics will undoubtedly describe thernHCPA as a victim of modern judicial activism.rnIt is not. As St. George Tucker explained:rnevery grant of jurisdiction to thern[federal government] . . . is to bernconsidered as special, inasmuch asrnit derogates from the antecedentrnrights and jurisdiction of the staternmaking the concession, and thereforernought to be constiued strictly.rnStrict constiuetion of the federal government’srnpowers should be the rule of constitutionalrninterpretation rather than thernexception. Though we are far from thernimplementation of Tucker’s maxim, thernCourt appears to be moving slowly in thernright direction. The anticipated demisernof the Hate Crimes Prevention Act willrnbe but a small step toward a reasonablerninterpretation of the Commerce Clausernand the restoration of the state governmentsrnto their proper place in the federalrnsystem.rnWilliam J. Watkins, Jr., is a recentrngraduate of the University of SouthrnCarolina School of Law.rnJANUARY 2000/45rnrnrn