For Independence Day, Supreme Court Slams Founders
Saturday, July 02, 2005
By Radley Balko
This past term, the Supreme Court handed down two rulings that will have a catastrophic effect on our personal freedom.
In Gonzales v. Raich, the court ruled that the Constitution's clause to "make regular" interstate commerce permitted federal agents to raid the home of a sick woman and confiscate the six marijuana plants she was growing for her own medication — all in a state whose population had overwhelmingly voted to legalize medical marijuana.
In Kelo v. City of New London, the court found that the phrase "public use" in the Fifth Amendment allows local governments to snatch land from law-abiding people, and sell it off to wealthy developers.
Both cases will have negative repercussions for liberty that reach far beyond their specific facts.
The Founding Fathers understood that every right we have emanates from our right to private property. In this sense, "private property" means not only the right to one's home and land, but also the right to own the product of one's labor.
James Madison, the father of the U.S. Constitution, wrote in 1789: "A man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions."
Every right we have stems from government's recognizance that we, the people, are born with our rights intact. We own them. We have property in them. We voluntarily forfeit some of these rights to government, in exchange for protection from outside threats, the administration of justice and the rule of law.
The purpose of the U.S. Constitution, then, is not to tell us what rights we have. We're born with the right to do as we please, so long as we don't harm anyone else.
The Constitution's purpose is to outline what rights we give to the government, and to firmly define the limits of government power.
Unfortunately, this isn't widely understood.
Commonly, we hear people say things like, "Where in the Constitution does it say you have the right to smoke a cigarette?" Or, "Where in the Constitution does it say you're allowed to look at pornography?"
James Madison worried about questions like these. He feared that if we included a Bill of Rights in the Constitution, people would eventually come to assume the rights it listed would be the only rights we have. Others felt some rights — speech, arms, etc. — were so vital as to merit explicit mention.
As a compromise, they included the Ninth Amendment (search), which says that the enumeration of some rights should not be construed to exclude rights not enumerated. So to answer the questions above, your rights to smoke a cigarette or consume pornography are both in the Ninth Amendment.
This is why the decision in Gonzales is so important — and so devastating. While the Supreme Court has smothered the Ninth Amendment for decades, Gonzales may serve as its obituary.
If the Ninth Amendment doesn't protect a man's right to consume whatever medicine might give him relief from pain — or that in some cases could save his life — what's left for the amendment to possibly protect?
If the Supreme Court killed off the Ninth Amendment with Gonzales, Kelo in many ways represents the culmination of its complete disregard for even our explicitly enumerated rights.
Go back to Madison's quote above. A government that doesn't respect the title to your land is in all likelihood a government that will in time lose respect for your property in your right to speech, arms and due process. And indeed in recent years, with help from the Supreme Court, government at all levels has run roughshod over even our explicitly enumerated rights.
With increasingly restrictive campaign laws, for example, we've lost the most important of our First Amendment (search) protections — the right to criticize the people who govern us at election time.
The Second Amendment (search) has been trampled by gun-control legislation. In our nation's capital, for example, guns of any kind have been all but outlawed.
The Patriot Act (search) and a spate of Supreme Court "Drug War" decisions have rendered our Fourth Amendment (search) protections from warrantless searches meaningless. Our Fifth Amendment (search) right against self-incrimination has been diluted in many contexts, and outright suspended in others (drunk-driving cases, for example).
Many prosecutors treat the grand-jury provision not as a criminal protection, but as an invitation to abuse. And, of course, Kelo wrecked the Fifth's protection against property-taking. These are really only cursory examples. There are many more.
In this sense, Kelo's symbolic significance is probably more damaging than its practical application. By deferring to state and local governments, who may now seize property for virtually any reason at all, the Supreme Court has announced its complete disregard for private property.
This means that America may have finally achieved Madison's dim vision: "An excess of power" now prevails, and we're now living under a government that neither respects our right to property, nor acknowledges the property we own in our rights.
Perhaps this isn't the cheeriest of columns to write over Independence Day. But it's certainly appropriate. Thomas Jefferson famously wrote that, "eternal vigilance is the price of liberty." We obviously haven't been vigilant enough.
Coincidentally, July 4 marks not only the birth of America, but the death of two of its founders — Jefferson and John Adams both died on this day in 1826, the 50th anniversary of America's independence.
Perhaps we should mark the date not only by celebrating America's independence, but by working to insure that this July 4 doesn't also mark the death of the ideas that animated its founding.
HR 2662
H.R. 2662: To provide Federal assistance to States and local jurisdictions to prosecute hate crimes, and for...
Introduced: May 25, 2005
Sponsor: Rep. John Conyers [D-MI]
Status: Introduced (By Rep. John Conyers [D-MI])
Last Action: May 25, 2005: Referred to the House Committee on the Judiciary.
109TH CONGRESS
H. R. 2662
1ST SESSION
To provide Federal assistance to States and local jurisdictions to prosecute
hate crimes, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 26, 2005
Mr. CONYERS (for himself, Mr. ABERCROMBIE, Mr. ACKERMAN, Mr. ALLEN,
Ms. BALDWIN, Ms. BERKLEY, Mr. BERMAN, Mr. BISHOP of Georgia, Mr.
BLUMENAUER, Mr. BOSWELL, Mr. BROWN of Ohio, Mrs. CAPPS, Mr.
CAPUANO, Mr. CARDIN, Mr. CASE, Mr. CLAY, Mr. COOPER, Mr. CROW-
LEY, Mr. CUMMINGS, Mr. DAVIS of Alabama, Mr. DAVIS of Florida, Mr.
DELAHUNT, Ms. DELAURO, Mr. ENGEL, Ms. ESHOO, Mr. FARR, Mr.
FATTAH, Mr. FILNER, Mr. FRANK of Massachusetts, Mr. GENE GREEN
of Texas, Mr. GRIJALVA, Mr. GUTIERREZ, Mr. HASTINGS of Florida, Mr.
HOLT, Mr. HONDA, Mr. HOYER, Mr. INSLEE, Mr. ISRAEL, Ms. JACKSON-
LEE of Texas, Mr. JEFFERSON, Mrs. JONES of Ohio, Mr. KENNEDY of
Rhode Island, Mr. KILDEE, Mr. KIND, Mr. KIRK, Mr. KOLBE, Mr.
LANGEVIN, Mr. LANTOS, Mr. LARSON of Connecticut, Mr. LEACH, Ms.
LEE, Mrs. LOWEY, Mr. LYNCH, Mrs. MALONEY, Mr. MATHESON, Mrs.
MCCARTHY, Ms. MCCOLLUM of Minnesota, Mr. MCDERMOTT, Mr.
MCGOVERN, Mr. MCNULTY, Mr. MEEHAN, Mr. MEEK of Florida, Mr.
MENENDEZ, Mr. GEORGE MILLER of California, Mr. MOORE of Kansas,
Mr. NADLER, Mr. OLVER, Mr. OWENS, Mr. PALLONE, Mr. PASTOR, Mr.
PAYNE, Mr. PRICE of North Carolina, Ms. ROS-LEHTINEN, Ms. ROYBAL-
ALLARD, Mr. SABO, Ms. LORETTA SANCHEZ of California, Mr. SANDERS,
Ms. SCHAKOWSKY, Mr. SCHIFF, Mr. SCOTT of Georgia, Mr. SERRANO,
Mr. SHAYS, Mr. SHERMAN, Mr. SIMMONS, Mr. SMITH of Washington,
Ms. SOLIS, Mr. STARK, Mrs. TAUSCHER, Mr. THOMPSON of Mississippi,
Mr. TIERNEY, Mr. UDALL of Colorado, Mr. VAN HOLLEN, Ms. WATERS,
Ms. WATSON, Mr. WEXLER, Ms. WOOLSEY, and Mr. WU) introduced the
following bill; which was referred to the Committee on the Judiciary
2
A BILL
To provide Federal assistance to States and local jurisdic-
tions to prosecute hate crimes, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ``Local Law Enforce-
5 ment Hate Crimes Prevention Act of 2005''.
6 SEC. 2. FINDINGS.
7 Congress makes the following findings:
8 (1) The incidence of violence motivated by the
9 actual or perceived race, color, religion, national ori-
10 gin, gender, sexual orientation, gender identity, or
11 disability of the victim poses a serious national prob-
12 lem.
13 (2) Such violence disrupts the tranquility and
14 safety of communities and is deeply divisive.
15 (3) State and local authorities are now and will
16 continue to be responsible for prosecuting the over-
17 whelming majority of violent crimes in the United
18 States, including violent crimes motivated by bias.
19 These authorities can carry out their responsibilities
20 more effectively with greater Federal assistance.
21 (4) Existing Federal law is inadequate to ad-
22 dress this problem.
HR 2662 IH
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1 (5) The prominent characteristic of a violent
2 crime motivated by bias is that it devastates not just
3 the actual victim and the family and friends of the
4 victim, but frequently savages the community shar-
5 ing the traits that caused the victim to be selected.
6 (6) Such violence substantially affects interstate
7 commerce in many ways, including--
8 (A) by impeding the movement of members
9 of targeted groups and forcing such members to
10 move across State lines to escape the incidence
11 or risk of such violence; and
12 (B) by preventing members of targeted
13 groups from purchasing goods and services, ob-
14 taining or sustaining employment, or partici-
15 pating in other commercial activity.
16 (7) Perpetrators cross State lines to commit
17 such violence.
18 (8) Channels, facilities, and instrumentalities of
19 interstate commerce are used to facilitate the com-
20 mission of such violence.
21 (9) Such violence is committed using articles
22 that have traveled in interstate commerce.
23 (10) For generations, the institutions of slavery
24 and involuntary servitude were defined by the race,
25 color, and ancestry of those held in bondage. Slavery
HR 2662 IH
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1 and involuntary servitude were enforced, both prior
2 to and after the adoption of the 13th amendment to
3 the Constitution of the United States, through wide-
4 spread public and private violence directed at per-
5 sons because of their race, color, or ancestry, or per-
6 ceived race, color, or ancestry. Accordingly, elimi-
7 nating racially motivated violence is an important
8 means of eliminating, to the extent possible, the
9 badges, incidents, and relics of slavery and involun-
10 tary servitude.
11 (11) Both at the time when the 13th, 14th, and
12 15th amendments to the Constitution of the United
13 States were adopted, and continuing to date, mem-
14 bers of certain religious and national origin groups
15 were and are perceived to be distinct ``races''. Thus,
16 in order to eliminate, to the extent possible, the
17 badges, incidents, and relics of slavery, it is nec-
18 essary to prohibit assaults on the basis of real or
19 perceived religions or national origins, at least to the
20 extent such religions or national origins were re-
21 garded as races at the time of the adoption of the
22 13th, 14th, and 15th amendments to the Constitu-
23 tion of the United States.
24 (12) Federal jurisdiction over certain violent
25 crimes motivated by bias enables Federal, State, and
HR 2662 IH
5
1 local authorities to work together as partners in the
2 investigation and prosecution of such crimes.
3 (13) The problem of crimes motivated by bias
4 is sufficiently serious, widespread, and interstate in
5 nature as to warrant Federal assistance to States
6 and local jurisdictions.
7 SEC. 3. DEFINITION OF HATE CRIME.
8 In this Act, the term ``hate crime'' has the same
9 meaning as in section 280003(a) of the Violent Crime
10 Control and Law Enforcement Act of 1994 (28 U.S.C.
11 994 note).
12 SEC. 4. SUPPORT FOR CRIMINAL INVESTIGATIONS AND
13 PROSECUTIONS BY STATE AND LOCAL LAW
14 ENFORCEMENT OFFICIALS.
15 (a) ASSISTANCE OTHER THAN FINANCIAL ASSIST-
16 ANCE.--
17 (1) IN GENERAL.--At the request of a law en-
18 forcement official of a State or Indian tribe, the At-
19 torney General may provide technical, forensic, pros-
20 ecutorial, or any other form of assistance in the
21 criminal investigation or prosecution of any crime
22 that--
23 (A) constitutes a crime of violence (as de-
24 fined in section 16 of title 18, United States
25 Code);
HR 2662 IH
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1 (B) constitutes a felony under the laws of
2 the State or Indian tribe; and
3 (C) is motivated by prejudice based on the
4 actual or perceived race, color, religion, national
5 origin, gender, sexual orientation, gender iden-
6 tity, or disability of the victim, or is a violation
7 of the hate crime laws of the State or Indian
8 tribe.
9 (2) PRIORITY.--In providing assistance under
10 paragraph (1), the Attorney General shall give pri-
11 ority to crimes committed by offenders who have
12 committed crimes in more than 1 State and to rural
13 jurisdictions that have difficulty covering the ex-
14 traordinary expenses relating to the investigation or
15 prosecution of the crime.
16 (b) GRANTS.--
17 (1) IN GENERAL.--The Attorney General may
18 award grants to assist State, local, and Indian law
19 enforcement officials with the extraordinary expenses
20 associated with the investigation and prosecution of
21 hate crimes.
22 (2) OFFICE OF JUSTICE PROGRAMS.--In imple-
23 menting the grant program, the Office of Justice
24 Programs shall work closely with the funded juris-
25 dictions to ensure that the concerns and needs of all
HR 2662 IH
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1 affected parties, including community groups and
2 schools, colleges, and universities, are addressed
3 through the local infrastructure developed under the
4 grants.
5 (3) APPLICATION.--
6 (A) IN GENERAL.--Each State that desires
7 a grant under this subsection shall submit an
8 application to the Attorney General at such
9 time, in such manner, and accompanied by or
10 containing such information as the Attorney
11 General shall reasonably require.
12 (B) DATE FOR SUBMISSION.--Applications
13 submitted pursuant to subparagraph (A) shall
14 be submitted during the 60-day period begin-
15 ning on a date that the Attorney General shall
16 prescribe.
17 (C) REQUIREMENTS.--A State or political
18 subdivision of a State or tribal official applying
19 for assistance under this subsection shall--
20 (i) describe the extraordinary pur-
21 poses for which the grant is needed;
22 (ii) certify that the State, political
23 subdivision, or Indian tribe lacks the re-
24 sources necessary to investigate or pros-
25 ecute the hate crime;
HR 2662 IH
8
1 (iii) demonstrate that, in developing a
2 plan to implement the grant, the State, po-
3 litical subdivision, or tribal official has con-
4 sulted and coordinated with nonprofit, non-
5 governmental victim services programs
6 that have experience in providing services
7 to victims of hate crimes; and
8 (iv) certify that any Federal funds re-
9 ceived under this subsection will be used to
10 supplement, not supplant, non-Federal
11 funds that would otherwise be available for
12 activities funded under this subsection.
13 (4) DEADLINE.--An application for a grant
14 under this subsection shall be approved or dis-
15 approved by the Attorney General not later than 30
16 business days after the date on which the Attorney
17 General receives the application.
18 (5) GRANT AMOUNT.--A grant under this sub-
19 section shall not exceed $100,000 for any single ju-
20 risdiction within a 1 year period.
21 (6) REPORT.--Not later than December 31,
22 2006, the Attorney General shall submit to Congress
23 a report describing the applications submitted for
24 grants under this subsection, the award of such
HR 2662 IH
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1 grants, and the purposes for which the grant
2 amounts were expended.
3 (7) AUTHORIZATION APPROPRIATIONS.--
OF
4 There is authorized to be appropriated to carry out
5 this subsection $5,000,000 for each of fiscal years
6 2006 and 2007.
7 SEC. 5. GRANT PROGRAM.
8 (a) AUTHORITY MAKE GRANTS.--The Office of
TO
9 Justice Programs of the Department of Justice shall
10 award grants, in accordance with such regulations as the
11 Attorney General may prescribe, to State and local pro-
12 grams designed to combat hate crimes committed by juve-
13 niles, including programs to train local law enforcement
14 officers in identifying, investigating, prosecuting, and pre-
15 venting hate crimes.
16 (b) AUTHORIZATION APPROPRIATIONS.--There
OF
17 are authorized to be appropriated such sums as may be
18 necessary to carry out this section.
19 SEC. 6. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO
20 ASSIST STATE AND LOCAL LAW ENFORCE-
21 MENT.
22 There are authorized to be appropriated to the De-
23 partment of the Treasury and the Department of Justice,
24 including the Community Relations Service, for fiscal
25 years 2006, 2007, and 2008 such sums as are necessary
HR 2662 IH
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1 to increase the number of personnel to prevent and re-
2 spond to alleged violations of section 249 of title 18,
3 United States Code, as added by section 7.
4 SEC. 7. PROHIBITION OF CERTAIN HATE CRIME ACTS.
5 (a) IN GENERAL.--Chapter 13 of title 18, United
6 States Code, is amended by adding at the end the fol-
7 lowing:
8 `` 249. Hate crime acts
9 ``(a) IN GENERAL.--
10 ``(1) OFFENSES INVOLVING ACTUAL OR PER-
11 CEIVED RACE, COLOR, RELIGION, OR NATIONAL ORI-
12 GIN.--Whoever, whether or not acting under color of
13 law, willfully causes bodily injury to any person or,
14 through the use of fire, a firearm, or an explosive or
15 incendiary device, attempts to cause bodily injury to
16 any person, because of the actual or perceived race,
17 color, religion, or national origin of any person--
18 ``(A) shall be imprisoned not more than 10
19 years, fined in accordance with this title, or
20 both; and
21 ``(B) shall be imprisoned for any term of
22 years or for life, fined in accordance with this
23 title, or both, if--
24 ``(i) death results from the offense; or
HR 2662 IH
11
1 ``(ii) the offense includes kidnaping or
2 an attempt to kidnap, aggravated sexual
3 abuse or an attempt to commit aggravated
4 sexual abuse, or an attempt to kill.
5 ``(2) OFFENSES INVOLVING ACTUAL OR PER-
6 CEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEX-
7 ORIENTATION, IDENTITY, DIS-
UAL GENDER OR
8 ABILITY.--
9 ``(A) IN GENERAL.--Whoever, whether or
10 not acting under color of law, in any cir-
11 cumstance described in subparagraph (B), will-
12 fully causes bodily injury to any person or,
13 through the use of fire, a firearm, or an explo-
14 sive or incendiary device, attempts to cause
15 bodily injury to any person, because of the ac-
16 tual or perceived religion, national origin, gen-
17 der, sexual orientation, gender identity or dis-
18 ability of any person--
19 ``(i) shall be imprisoned not more
20 than 10 years, fined in accordance with
21 this title, or both; and
22 ``(ii) shall be imprisoned for any term
23 of years or for life, fined in accordance
24 with this title, or both, if--
HR 2662 IH
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1 ``(I) death results from the of-
2 fense; or
3 ``(II) the offense includes kid-
4 naping or an attempt to kidnap, ag-
5 gravated sexual abuse or an attempt
6 to commit aggravated sexual abuse, or
7 an attempt to kill.
8 ``(B) CIRCUMSTANCES DESCRIBED.--For
9 purposes of subparagraph (A), the cir-
10 cumstances described in this subparagraph are
11 that--
12 ``(i) the conduct described in subpara-
13 graph (A) occurs during the course of, or
14 as the result of, the travel of the defendant
15 or the victim--
16 ``(I) across a State line or na-
17 tional border; or
18 ``(II) using a channel, facility, or
19 instrumentality of interstate or for-
20 eign commerce;
21 ``(ii) the defendant uses a channel, fa-
22 cility, or instrumentality of interstate or
23 foreign commerce in connection with the
24 conduct described in subparagraph (A);
HR 2662 IH
13
1 ``(iii) in connection with the conduct
2 described in subparagraph (A), the defend-
3 ant employs a firearm, explosive or incen-
4 diary device, or other weapon that has
5 traveled in interstate or foreign commerce;
6 or
7 ``(iv) the conduct described in sub-
8 paragraph (A)--
9 ``(I) interferes with commercial
10 or other economic activity in which
11 the victim is engaged at the time of
12 the conduct; or
13 ``(II) otherwise affects interstate
14 or foreign commerce.
15 ``(b) CERTIFICATION REQUIREMENT.--No prosecu-
16 tion of any offense described in this subsection may be
17 undertaken by the United States, except under the certifi-
18 cation in writing of the Attorney General, the Deputy At-
19 torney General, the Associate Attorney General, or any
20 Assistant Attorney General specially designated by the At-
21 torney General that--
22 ``(1) he or she has reasonable cause to believe
23 that the actual or perceived race, color, religion, na-
24 tional origin, gender, sexual orientation, gender iden-
25 tity, or disability of any person was a motivating
HR 2662 IH
14
1 factor underlying the alleged conduct of the defend-
2 ant; and
3 ``(2) he or his designee or she or her designee
4 has consulted with State or local law enforcement of-
5 ficials regarding the prosecution and determined
6 that--
7 ``(A) the State does not have jurisdiction
8 or does not intend to exercise jurisdiction;
9 ``(B) the State has requested that the Fed-
10 eral Government assume jurisdiction;
11 ``(C) the State does not object to the Fed-
12 eral Government assuming jurisdiction; or
13 ``(D) the verdict or sentence obtained pur-
14 suant to State charges left demonstratively
15 unvindicated the Federal interest in eradicating
16 bias-motivated violence.
17 ``(c) DEFINITIONS.--In this section--
18 ``(1) the term `explosive or incendiary device'
19 has the meaning given the term in section 232 of
20 this title;
21 ``(2) the term `firearm' has the meaning given
22 the term in section 921(a) of this title; and
23 ``(3) the term `gender identity' for the purposes
24 of this chapter means actual or perceived gender-re-
25 lated characteristics.
HR 2662 IH
15
1 ``(d) RULE EVIDENCE.--In a prosecution for an
OF
2 offense under this section, evidence of expression or asso-
3 ciations of the defendant may not be introduced as sub-
4 stantive evidence at trial, unless the evidence specifically
5 relates to that offense. However, nothing in this section
6 affects the rules of evidence governing impeachment of a
7 witness.''.
8 (b) TECHNICAL CONFORMING AMENDMENT.--
AND
9 The analysis for chapter 13 of title 18, United States
10 Code, is amended by adding at the end the following:
``249. Hate crime acts.''.
11 SEC. 8. STATISTICS.
12 Subsection (b)(1) of the first section of the Hate
13 Crimes Statistics Act (28 U.S.C. 534 note) is amended
14 by inserting ``gender and gender identity,'' after ``race,''.
15 SEC. 9. SEVERABILITY.
16 If any provision of this Act, an amendment made by
17 this Act, or the application of such provision or amend-
18 ment to any person or circumstance is held to be unconsti-
19 tutional, the remainder of this Act, the amendments made
20 by this Act, and the application of the provisions of such
21 to any person or circumstance shall not be affected there-
22 by.

