Crime fighters vs. the Constitution

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By Jacob Sullum

In a 1995 decision that overturned a federal ban on possessing guns near schools, the U.S. Supreme Court noted that "the Constitution creates a federal government of enumerated powers," which do not include a general authority to fight crime.

Five years later, when it overturned a statutory provision that created a federal cause of action for victims of gender-motivated violence, the court warned that congressional attempts to usurp the states' police power threatened to erase the "distinction between what is truly national and what is truly local."

Since then a chastened Congress has consistently rejected anti-crime legislation that lacks a firm constitutional basis. Just kidding. Two pieces of legislation in the news, both named after murder victims, show that posing as a crime fighter is still more popular on Capitol Hill than obeying the Constitution.

The Matthew Shepard Act, which the House approved in April and the Senate is considering this week, adds offenses committed because of a victim's actual or perceived gender, sexual orientation, gender identity or disability to the list of hate crimes that can be prosecuted under federal law. As the U.S. Civil Rights Commission notes in a letter opposing the bill, that language could cover many crimes traditionally prosecuted under state law, potentially including rapes targeting women (selected because of their gender) and muggings of disabled people (selected because they are less able to resist).

The bill also would remove a condition limiting hate crime prosecutions to cases where the victim was participating in a federally protected activity such as education or voting. Instead, it would cover crimes with just about any connection, no matter how tangential, to interstate commerce, which the Constitution authorizes the federal government to regulate. If the weapon used in an assault was manufactured outside the state where the assault occurred, for instance, that fact would be enough to assert federal jurisdiction.

The Matthew Shepard Act has the same basic problem as state hate crime laws, which punish people for their beliefs by enhancing the penalties for existing offenses when they are motivated by bigotry. The bill adds another layer of injustice by making it easier for federal prosecutors who are displeased by acquittals in state courts to try the defendants again, as they did in the cases stemming from the 1991 Crown Heights riot in Brooklyn, New York, and the 1991 Los Angeles police beating of Rodney King.

The Supreme Court has said such repeated prosecutions do not violate the constitutional prohibition of double jeopardy because they involve two different governments. But the reality of these cases indicates otherwise: People who were acquitted in state court were tried again, based on the same underlying actions, and convicted. The fact that the Matthew Shepard Act reserves such treatment for defendants with unpopular opinions hardly mitigates the problem.

Unlike the legislators who wrote the Matthew Shepard Act, the authors of the Adam Walsh Child Protection and Safety Act did not even pretend they were exercising powers granted by the Constitution. This week the Supreme Court agreed to decide whether they were, focusing on a provision of the 2006 law that permits civil commitment of federal prisoners deemed to be "sexually dangerous."

Such preventive detention is bad enough when states do it, since it keeps people locked up indefinitely after they have completed their sentences, based not on crimes they have committed but on crimes they might commit. The federal version is even worse.

As the U.S. 4th Circuit Court of Appeals noted in a January decision, the law gives the federal government "unprecedented authority over civil commitment - an area long controlled by the states."

The 4th Circuit concluded that the provision is not a valid exercise of the federal power to regulate interstate commerce, since it targets activity that is neither interstate nor commercial. Whatever one thinks of the law's goals, the court said, "policy justifications do not create congressional authority." That statement should be tattooed on every congressman's voting hand.

Jacob Sullum is a nationally syndicated columnist.