Sunday, November 28, 2004
Libertarianism against Hate Crimes Legislation

I can understand the conservative libertarian arguments (as espoused by Andrew Sullivan and others) that hate crime legislations try to guess the motive of the defendant, and vary the punishment according to what the jury thinks is the motive - a blatantly wrong thing to do.

However, the problem with the argument is that it is a fact that members of certain sections of the society are more vulnerable than others, and the society does not get across the point that harming them, for their membership in that section, is blatant violation of their liberty, and is not acceptable.

In fact, in many cases, the American system goes the other way. In the case of racial prejudice, this took the form of slavery, Justice Taney and segregation. The group now in focus is the LGBT community. With a President who is dares not refer to them directly, and a party that goes out of the way to call them polluting and immoral controlling all levers of power, how could the gays and lesbians expect the wider society to respect their lives, and liberty? Hate Crime Laws are one way, however dubious, of making that point.

Another argument is that motive, being belief, is something that somebody should not be punished for - only actions, arising out of the motive, should be punished. But the Supreme Court unanimously disposed of this argument in Wisconsin v Mitchell.

So, how do we reconcile the two positions? One possible way may be to have such laws with accompanying sunset provisions. But again, four decades after the Civil Rights Act, and Voting Rights Act, and ages after the Civil War, we still see hate crimes against African-Americans and Jews.

Yes, HCLs are troublesome. But the way out should be finding ways of mitigating their negatives - or alternatives that get across the spirit of HCLs without the laws. If one could find some way of doing this, HCLs can be avoided - but they should not be shunned at the cost of letting the minorities fend for themselves.

After all, equal protection means that each should be protected to the extent commensurate with the threat they face.

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