[T]he fact that it is constitutional and commonplace does not quiet the nagging sense that hate crime legislation resembles something from an Orwell dystopia. Horrific crimes deserve stern justice, but don’t we want to be careful about criminalizing a defect of character? Because our founders believed that democracy requires great latitude for dissent, America, virtually alone in the developed world, protects the right to speak or publish the most odious points of view. And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime.

Bill Keller, former executive editor of the New York Times, in an op-ed piece discussing the cases of Tyler Clementi and Trayvon Martin.

(A law professor makes a cameo in the column, after the jump.)

Bill Keller cites the work of former University of Illinois law dean Heidi Hurd:

Back in 2001, Heidi M. Hurd, a professor who comingles law and philosophy, wrote an article entitled “Why Liberals Should Hate ‘Hate Crime Legislation.’ ” The thesis sounded contrarian; hate crime laws evolved out of a great liberal cause — civil rights — and have been propelled by activists and politicians most of us would call liberal. Hurd, though she is a Democrat, was referring not to the contemporary political left but to traditional, John-Locke-and-John-Stuart-Mill liberalism, which holds that the state is licensed to temper bad behavior, not to perfect human nature. Hate crime laws, she wrote, crossed that line: “The law now regulates not only what we do, but who we are.”

…. The distinction Hurd makes — convincingly, I think — is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.

“You can’t choose not to be prejudiced or biased — at least not willy-nilly, on the spot,” she told me, when I called her the other day at the University of Illinois. “We pass moral judgments all the time against bigots and chauvinists and homophobes and so forth. But this is a question not of what we should morally blame people for, but of what we should deprive them of liberty for.”

You can read the rest of Keller’s very interesting column, which includes additional commentary from Professor Hurd, over here.

Tyler and Trayvon [New York Times via ABA Journal]


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