The democratic legitimacy of bias crime laws: Public reason and the political process

Law and Philosophy

Volumn 20, Issue 2, 2001, Pages 141-173

  Altman, Andrew ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0035645037     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1010611811035     Document Type: Article

References (63)

1. David Rosenberg, Hate Crimes Laws: 1999 (United States of America: Anti-Defamation League, 1998), pp. 8 and 20-21. Also see Anthony M. Dillof, "Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes," Northwestern University Law Review 91 (Spring 1997), p. 1016, and Craig Peyton Gaumer, "Punishment for Prejudice: A Comment on the Constitutionality and Utility of State Statutory Responses to the Problem of Hate Crime," South Dakota Law Review 39 (1994), p. 9.
2. David Rosenberg, Hate Crimes Laws: 1999 (United States of America: Anti-Defamation League, 1998), pp. 8 and 20-21. Also see Anthony M. Dillof, "Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes," Northwestern University Law Review 91 (Spring 1997), p. 1016, and Craig Peyton Gaumer, "Punishment for Prejudice: A Comment on the Constitutionality and Utility of State Statutory Responses to the Problem of Hate Crime," South Dakota Law Review 39 (1994), p. 9.
3. David Rosenberg, Hate Crimes Laws: 1999 (United States of America: Anti-Defamation League, 1998), pp. 8 and 20-21. Also see Anthony M. Dillof, "Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes," Northwestern University Law Review 91 (Spring 1997), p. 1016, and Craig Peyton Gaumer, "Punishment for Prejudice: A Comment on the Constitutionality and Utility of State Statutory Responses to the Problem of Hate Crime," South Dakota Law Review 39 (1994), p. 9.
4. Wisconsin v. Mitchell 113 S.Ct. 2194 (1993). In Apprendi v. New Jersey (No. 99-478) (June 26, 2000), the Supreme Court held that a defendant had a constitutional right that enhanced punishment be imposed only by a jury upon its finding beyond a reasonable doubt that the defendant acted with a discriminatory or prejudicial motive. The Court struck down an enhanced punishment that had been imposed by a judge using a preponderance of the evidence standard.
5. A discriminatory motive, as I understand it for purposes of this paper, need not involve animus or prejudice: it may simply involve the belief, for example, that members of some protected class are easier targets of criminal conduct.
6. Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law (Cambridge, MA: Harvard University Press, 1999), p. 100.
7. James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), pp. 125 and 128. Jacobs and Potter endorse the opinion handed down by the state supreme court in the Mitchell case, which declared unconstitutional the bias law in question and condemned it for creating a thought crime. See State v. Mitchell 485 NW 2nd 807 (1992).
8. James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), pp. 125 and 128. Jacobs and Potter endorse the opinion handed down by the state supreme court in the Mitchell case, which declared unconstitutional the bias law in question and condemned it for creating a thought crime. See State v. Mitchell 485 NW 2nd 807 (1992).
9. For Rawls's most recent account of public reason, see "The Idea of Public Reason Revisited," in The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), pp. 131-180. Also "Introduction to Paperback Edition," Political Liberalism (New York: Columbia University Press, 1996).
10. For Rawls's most recent account of public reason, see "The Idea of Public Reason Revisited," in The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), pp. 131-180. Also "Introduction to Paperback Edition," Political Liberalism (New York: Columbia University Press, 1996).
11. Rawls, "Idea of Public Reason Revisited," pp. 165-166.
12. Ibid., p. 155. Rawls and the other advocates of public reason do not present it as incorporating a set of legally enforceable requirements on the contributions citizens may make to public political argument. The principle of free expression would clearly condemn any such approach. Instead, public reason is presented as a perspective that captures a set of moral norms specifying how the citizens of a constitutional democracy ought to treat one another in their public discourse.
13. Rawls, Political Liberalism, pp. 5 and 6.
14. Rawls, Political Liberalism, p. 6.
15. Ibid.
16. Ibid., p. 137. But see p. 169 for a different formulation of the conditions of legitimate law. Also see, Political Liberalism, paper ed., pp. lvi-lvii.
17. Ibid., p. 137. But see p. 169 for a different formulation of the conditions of legitimate law. Also see, Political Liberalism, paper ed., pp. lvi-lvii.
18. Rawls does make an effort to bridge the gap between his principles of justice and the particular issues of political debate and discussion. In Political Liberalism, for example, he examines such questions as whether subversive speech should be protected as a basic liberty and whether current campaign financing practices should be overhauled. In setting the groundwork for examining these issues, Rawls uses the idea, initially presented in A Theory of Justice, of a four-stage sequence for applying the principles of justice. The sequence involves, for example, distinct constitutional and legislative phases. But it is unclear how the idea of public reason is to be integrated into the four-stage sequence and uncertain how the idea guides his analyses of particular public issues. See Political Liberalism, pp. 336 ff., and John Rawls, A Theory of Justice, revised edition (Cambridge, MA: Harvard University Press, 1999), pp. 171 ff.
19. Rawls does make an effort to bridge the gap between his principles of justice and the particular issues of political debate and discussion. In Political Liberalism, for example, he examines such questions as whether subversive speech should be protected as a basic liberty and whether current campaign financing practices should be overhauled. In setting the groundwork for examining these issues, Rawls uses the idea, initially presented in A Theory of Justice, of a four- stage sequence for applying the principles of justice. The sequence involves, for example, distinct constitutional and legislative phases. But it is unclear how the idea of public reason is to be integrated into the four-stage sequence and uncertain how the idea guides his analyses of particular public issues. See Political Liberalism, pp. 336 ff., and John Rawls, A Theory of Justice, revised edition (Cambridge, MA: Harvard University Press, 1999), pp. 171 ff.
20. See Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), pp. 66-67, and A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 2 and 17.
21. See Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), pp. 66-67, and A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 2 and 17.
22. Dworkin, Law's Empire, p. 67.
23. The standard that I am suggesting borrows language from a proposal once made by Gerald Gunther regarding the appropriate standard of review in certain kinds of constitutional cases. See Gunther, "Foreword: In Search of Evolving Doctrine On a Changing Court: A Model for a Newer Equal Protection," Harvard Law Review 86 (1972), p. 21.
24. Heidi Hurd, "The Levitation of Liberalism," Yale Law Journal 105 (December 1995), p. 796.
25. Thomas Nagel, The Last Word (New York: Oxford University Press, 1997), p. 33. For those who may think that claims about the normative authority of reason itself involve some kind of impossible "philosophical levitation," see Nagel, pp. 20 ff. and 143. He shows how the authority of reason is presupposed by any global challenge to reason itself and indeed by any form of thinking at all.
26. Thomas Nagel, The Last Word (New York: Oxford University Press, 1997), p. 33. For those who may think that claims about the normative authority of reason itself involve some kind of impossible "philosophical levitation," see Nagel, pp. 20 ff. and 143. He shows how the authority of reason is presupposed by any global challenge to reason itself and indeed by any form of thinking at all.
27. Susan Gellman, "Hate Crime Laws are Thought Crime Laws," Annual Survey of American Law 1992/3, pp. 514-515. Also see Susan Gellman, "Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional Implications of Ethnic Intimidation Laws," UCLA Law Review 39 (1991), pp. 362 ff.
28. Susan Gellman, "Hate Crime Laws are Thought Crime Laws," Annual Survey of American Law 1992/3, pp. 514-515. Also see Susan Gellman, "Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional Implications of Ethnic Intimidation Laws," UCLA Law Review 39 (1991), pp. 362 ff.
29. See State v. Wyant 597 NE2d 450 (1992); Ralph S. Brown, "Susan Gellman Has It Right," Criminal Justice Ethics 11(2) (Summer/Fall 1992), pp. 46-51, and Gaumer, "Punishment for Prejudice."
30. See State v. Wyant 597 NE2d 450 (1992); Ralph S. Brown, "Susan Gellman Has It Right," Criminal Justice Ethics 11(2) (Summer/Fall 1992), pp. 46-51, and Gaumer, "Punishment for Prejudice."
31. See State v. Wyant 597 NE2d 450 (1992); Ralph S. Brown, "Susan Gellman Has It Right," Criminal Justice Ethics 11(2) (Summer/Fall 1992), pp. 46-51, and Gaumer, "Punishment for Prejudice."
32. Jeffrie G. Murphy, "Bias Crimes: What Do Haters Deserve?" Criminal Justice Ethics 11(2) (Summer/Fall 1992), p. 20.
33. Paul H. Robinson, "Hate Crimes: Crimes of Motive, Character, or Group Terror," Annual Survey of American Law 1992/93, p. 605.
34. Kent Greenawalt, "Reflections on Justifications for Defining Crimes By the Category of Victim," Annual Survey of American Law 1992/93, p. 620.
35. Brown, "Susan Gellman Has It Right," p. 47.
36. James B. Weinstein, "First Amendment Challenges to Hate Crime Legislation: Where's the Speech?," Criminal Justice Ethics 11(2) (Summer/Fall 1992), p. 8. Weinstein presents a highly qualified and tentative defense of the laws.
37. Murphy, "Bias Crimes," p. 21.
38. H.L.A. Hart, Law, Liberty, and Morality (Stanford University Press, 1963), p. 6.
39. William Edmundson, "Liberalism, Legal Decisionmaking, and Morality 'As Such'," Oxford Journal of Legal Studies (1990), p. 505.
40. Ibid., 520. The most cogent versions of liberalism recognize that a liberal political order requires the systematic inculcation of certain habits, values, and traits of character among its citizens. As Stephen Macedo writes, "Liberalism depends, after all, on a certain ordering of the soul." See his "Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism," Political Theory 26(1) (February 1998), p. 64.
41. Ibid., 520. The most cogent versions of liberalism recognize that a liberal political order requires the systematic inculcation of certain habits, values, and traits of character among its citizens. As Stephen Macedo writes, "Liberalism depends, after all, on a certain ordering of the soul." See his "Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism," Political Theory 26(1) (February 1998), p. 64.
42. Ibid., 520. The most cogent versions of liberalism recognize that a liberal political order requires the systematic inculcation of certain habits, values, and traits of character among its citizens. As Stephen Macedo writes, "Liberalism depends, after all, on a certain ordering of the soul." See his "Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism," Political Theory 26(1) (February 1998), p. 64.
43. Ibid., p. 506.
44. "Clinton Urges Boost in Rights, Hate Crime Coverage," Washington Post, January 16, 2000, p. A05.
45. Greenawalt, "Reflections on Justifications," p. 627.
46. Wisconsin v. Mitchell 113 S. Ct. 2194, 2201 (1993).
47. Among the other problems is that empirical studies have cast some doubt on the claim that bias crime causes extra harm. See Alon Harel and Gideon Parchomovsky, "On Hate and Equality," Yale Law Journal 109 (December 1999), pp. 514-518. Nonetheless, the studies are very sparse and hardly conclusive.
48. Rawls, Political Liberalism, pp. 294-295.
49. Dan Kahan is one of the few advocates of bias crime laws who have carefully considered the implications of the stigmatizing character of the laws. See Kahan, "The Secret Ambition of Deterrence," Harvard Law Review 113 (December 1999), pp. 462-476. I examine his views below in section XIV.
50. Lawrence, Punishing Hate, p. 167.
51. Steven B. Weisburd and Brian Levin, "On the Basis of Sex: Recognizing Gender-Based Bias Crimes," Stanford Law and Policy Review 5 (Spring 1994), p. 27.
52. In the case of R.A.V. v. St. Paul, the Supreme Court came very close to explicitly recognizing the unreasonableness of the stigmatizing purpose behind the law it struck down, which prohibited the public display of any symbol that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender." Referring to the way in which the law selects symbols that have a particular kind of content, Justice Scalia wrote, "the only interest distinctively served by the content limitation is that of displaying the city council's special hostility toward the particular biases singled out. That is precisely what the First Amendment forbids." R.A.V. v. St. Paul 505 U.S. 377, 380 and 396 (1992). The Court need only have filled in the next logical step: the display of hostility was meant to place an official stigma on the biases in question and First Amendment principles disqualify any justification relying on such a stigma. The Mitchell case is distinguishable from R.A.V. because justifications not relying on its stigmatizing power were invoked to support Wisconsin's bias crime law. But the Court over-simplified matters by essentially assuming that the existence of such justifications automatically took precedence over the presence of the unreasonable justification from stigma.
53. Perhaps in a strongly egalitarian society the laws would be supported in some measure as a way of stigmatizing political beliefs associated with support for capitalism.
54. One could argue, as does Frederick Schauer, that bias crime laws might be justifiable on the basis of the need to provide greater deterrence to potential assaulters who are racist than those who are nonracist. But that argument is beside the current point, which is that justifications based on stigma are disqualified by public reason due to their infringement of freedom of thought. In addition, if bias crime laws infringe on basic liberties, then Schauer's argument from deterrence will be insufficient to justify the laws, in the same way that the standard harm-based justifications are insufficient. See Schauer, "Messages, Motives, and Hate Crimes," Criminal Justice Ethics 11(2) (Summer/Fall 1992), p. 54.
55. This view can be found in Lawrence, Punishing Hate, p. 107, and Weinstein, "First Amendment Challenges," pp. 13-15. Both scholars contend that the criminal/civil distinction does not make a difference in this context, and I think that their contention is right. What counts is whether and why the law is imposing a penalty, and the civil or criminal nature of the penalty is beside the point.
56. This view can be found in Lawrence, Punishing Hate, p. 107, and Weinstein, "First Amendment Challenges," pp. 13-15. Both scholars contend that the criminal/civil distinction does not make a difference in this context, and I think that their contention is right. What counts is whether and why the law is imposing a penalty, and the civil or criminal nature of the penalty is beside the point.
57. Lawrence, Punishing Hate, p. 110. Also see pp. 2, 8, and 167.
58. Ibid., p. 168.
59. Harel and Parchomovsky also invoke the distributional impact of bias crime in their argument for bias crime laws. But their "fair protection paradigm" is quite different from the "special-harm justification" that I develop in the next section. Their central principle is that "a liberal state must redress disparities in vulnerability to crime that result from certain immutable personal characteristics of the victim." Though they often refer to the need for protecting "vulnerable groups," their principle is essentially an individualist one that abstracts from questions of systemic subordination and the second-class status of certain groups. Those questions are at the heart of the special-harm justification. See Harel and Parchomovsky, "On Hate and Equality," p. 510.
60. Lawrence Crocker comes close to articulating the justification from special harm, but he places too much of a moralistic spin on it by focusing on how morally blameworthy racial bias crime is. For me, what matters is not whether bias crimes are morally more blameworthy but whether they help sustain systemic subordination. See Crocker, "Hate Crime Statutes: Just? Constitutional? Wise?" Annual Survey of American Law 1992/93, pp. 492-493.
61. Kahan, "The Secret Ambition of Deterrence," p. 417.
62. Ibid., p. 464.
63. Ibid., pp. 465, 466.