New federal hate-crimes legislation is on the way. Never one to miss an opportunity to expands its powers, the national government has capitalized on a perceived rash of hate crimes in order to increase federal jurisdiction, and the Hate Crimes Prevention Act of 1999 (HCPA) will probably become law in the near future.

When confronted with such legislation in the past, the federal courts mindlessly declared that Congress had a rational basis for enacting the law pursuant to the power to regulate commerce. But in light of United States v. Lopez, which struck down a federal law (based on the Commerce Clause) that criminalized possession of a firearm near schools, courts are paying more attention to the forgotten concept of federalism. Just before the new hate-crimes act was introduced, the United States Court of Appeals for the Fourth Circuit struck down, in Brzonkala v. Virginia Polytechnic Institute, a portion of the Violence Against Women Act (VAWA), which greatly resembles the HCPA, as an unconstitutional exercise of Congress’s power to regulate commerce and enforce the 14th Amendment. The VAWA, in part, declared that “[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender,” and created a private cause of action against individuals committing such a crime.

In Brzonkala, a female student at Virginia Tech brought suit against two football players who allegedly gang-raped her because of “gender animus.” The United States intervened in the suit to defend the constitutionality of the VAWA. The government argued that the statute was constitutional based on two grounds: the enforcement clause of the 14th Amendment and the Commerce Clause. The 14th Amendment provides, in pertinent part, that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Because the amendment refers only to state action, it is a well-settled principle of American constitutional law that Congress cannot reach private conduct by using the 14th Amendment. As the Fourth Circuit observed, the VAWA “unmistakably regulates private action; it creates a cause of action against private individuals who commit acts of gender-motivated violence.” Moreover, the court found the VAWA—drafted in broad and sweeping terms—was not closely tailored to remedy the supposed violation of the 14th Amendment. Not wishing to “confer upon Congress a general police power,” the court declared that the VAWA’s private cause of action exceeded Congress’s power to enforce the amendment.

The Fourth Circuit’s Commerce Clause analysis is especially interesting since it supplies Lopez with the bite truly to limit Congress’s use of the commerce power. Though Lopez‘s analysis was heralded by many as revolutionary, others realized that the landmark decision left the Supreme Court’s most expansive interpretations of the Commerce Clause in place. Justice Clarence Thomas, in his concurring opinion in Lopez, went so far as to accuse the majority of giving Congress a general police power over all aspects of day-to-day life. Moreover, the majority hinted that the Gun-Free School Zones Act might have been viewed more favorably by the Court had Congress merely conducted hearings regarding the effect of gun possession in a school zone on interstate commerce.

In defending the VAWA, the government used many of the same arguments that failed in Lopez. It essentially claimed that violence against women is a devastating social ill which affects the national economy—increased medical and legal costs are imposed on victims; women are discouraged from traveling and transacting business in public places; and women become less productive because of their constant fear of violence. The Fourth Circuit began by noting the obvious: The VAWA is a criminal statute and does not regulate economic activity. The court recognized that to adopt the federal government’s understanding of the power to regulate commerce:

would be to extend federal control to a vast range of problems falling within even the most traditional areas of state concern—problems such as violent crime generally, educational shortcomings, and even divorce, all of which are significant and as a result unquestionably affect the economy and ultimately interstate commerce.

As for congressional findings that violence against women affects the economy, the Fourth Circuit refused to give them “absolute deference.” In the end, federalism carried the day, as the right to be free from “gender animus” and the accompanying private cause of action were struck down.

The Supreme Court has already granted certiorari and will soon be reviewing Brzonkala. If upheld, as it should be, it will mean the demise of the Hate Crimes Prevention Act of 1999, which is the child of Sen. Edward Kennedy and the usual congressional suspects.

The dragging death of James Byrd in Jasper, Texas, and the robbery-turned-murder of Matthew Shepard in Laramie, Wyoming, provided much of the impetus behind the proposed hate-crimes legislation. Almost every supporter of the HCPA explicitly referred to the incidents. President Clinton described the deaths as teaching “us how easily prejudice can erupt into violence.” Janet Reno remarked that they “show once again that we [the federal government] must do more to fight hate crimes in America.” Byrd’s daughter, while participating in a news conference with Senator Kennedy, applauded the HCPA because, under the legislation, perpetrators of hate crimes “will pay the price.” These supporters of the HCPA completely ignored the fact that the murderers of Byrd and Shepard were rapidly brought to justice by state law enforcement officials. Byrd’s killer was sentenced to death, and Shepard’s killer received two consecutive life terms. How federal law will extract a higher price is unclear. The judicial systems of the several states, accounting for 95 percent of all prosecutions nationwide, are still capable of bringing lawbreakers to justice, as they have since the colonial era.

In offering her support for an earlier version of Kennedy’s legislation, former Sen. Carol Moseley-Braun described hate crimes as “especially troubling” because they:

send a message to all members of a community that they are not free to walk the streets, to own property, or to enjoy their fundamental rights as Americans simply because of how they look or what they believe.

But whether a crime is motivated by hate or not, members of a community are apt to feel that their lives, liberties, and properties are less secure than before. A sane society would realize that criminal action itself is an evil, whether the motivation is prejudice or rapacity.

Perhaps the most disturbing remarks in favor of Kennedy’s legislation came from Sen. John F. Kerry. Kerry averred that “true citizenship belongs only to an enlightened people, undeterred by passion or prejudice—and it exists in a country which recognizes no one particular aspect of humanity before another.” Kerry’s message is clear. The unenlightened of society—those who disapprove of certain lifestyles or habits—cannot be true citizens. The Christian who teaches his children that homosexuality is against God’s Commandments is lumped together with the criminal who murders a man because of his sexual preference.

Senator Kennedy’s HCPA differs markedly from current federal hate crimes legislation. Current law prohibits interference with six specifically enumerated federally protected activities on the basis of a person’s race, color, religion, or national origin. The activities are: enrolling or attending a public school or college; participating in services or activities provided by state or local government; applying for or holding a job; serving as a juror in state court; traveling; and enjoying public accommodations.

The HCPA adds a provision to current law prohibiting intentional infliction of bodily injury (using fire, a firearm, or explosive device) based on the victim’s race, color, religion, or national origin. To fall under this provision, the victim need not be participating in a federally protected activity.

Similarly, another provision prohibits intentional infliction of injury using fire, a firearm, or explosive device based on the victim’s gender, sexual orientation, or disability. Again, the victim need not be participating in a protected activity, but the offense must affect “interstate or foreign commerce.”

Under both new provisions, only felonies may be prosecuted, and the Justice Department must certify that “a prosecution by the United States is in the public interest and necessary to secure substantial justice.”

Like the VAWA, the proposed hatecrimes statute contains a number of findings. The HCPA claims that hate-crimes affect interstate commerce “by impeding the movement of members of targeted groups and forcing such members to move across state lines to escape . . . violence,” and “by preventing members of targeted groups from purchasing goods and services, obtaining or sustaining employment or participating in other commercial activity.”

The government is abusing its power to regulate commerce in order to enact a criminal statute. According to Alexander Hamilton in Federalist 17, “the ordinary administration of criminal and civil justice” under the Constitution is “the province of the State governments.” Nevertheless, Senator Kennedy’s response is that “[w]e must stop acting like we don’t care—that somehow this fundamental issue is just a state problem. It isn’t. It’s a national problem.”

Of course, following the logic of the HCPA, all criminal conduct could be a “national problem” that substantially affects interstate commerce. The Supreme Court rejected this approach in Lopez, and the Fourth Circuit followed suit in Brzonkala. In Brzonkala is upheld by the high court, the provisions of the Hate Crimes Prevention Act regarding gender, homosexuality, and disability will enjoy a quick death. If the Violence Against Women Act exceeds Congress’s powers, then surely the HCPA provisions also exceed the scope of the Commerce Clause.

Critics will undoubtedly describe the HCPA as a victim of modern judicial activism. It is not. As St. George Tucker explained:

every grant of jurisdiction to the [federal government] . . . is to be considered as special, inasmuch as it derogates from the antecedent rights and jurisdiction of the state making the concession, and therefore ought to be construed strictly.

Strict construction of the federal government’s powers should be the rule of constitutional interpretation rather than the exception. Though we are far from the implementation of Tucker’s maxim, the Court appears to be moving slowly in the right direction. The anticipated demise of the Hate Crimes Prevention Act will be but a small step toward a reasonable interpretation of the Commerce Clause and the restoration of the state governments to their proper place in the federal system.