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Order Code RS22335
November 28, 2005
CRS Report for Congress
Received through the CRS Web
Congress's Power to Legislate Control Over
Hate Crimes: Selected Legal Theories
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Summary
Congress has no power under the commerce clause over noneconomic, violent
criminal conduct that does not cross state lines said Chief Justice William Rehnquist
in United States v. Morrison. Nor, he added, can the overreach be rectified by calling
upon Congress's authority under the Fourteenth Amendment. States can enact hate
crime laws, but the reasoning in Morrison appears to impact national legislation targeted
at crimes against African-Americans, homosexuals, Jews, Muslims or other ethnic
minorities - at least when such efforts rest solely on the commerce clause and the
Fourteenth Amendment. Congress, however, enjoys additional legislative powers under
the spending clauses and the legislative clauses of the Thirteenth and Fifteenth
Amendments. Extensive, if something less than all encompassing, national legislation
may be possible under the confluence of authority conveyed by the commerce clause,
spending clause, and the legislative clauses of the constitution's Reconstruction
Amendments, provided the limitations of the First, Sixth and Tenth Amendments are
observed.
Introduction. The Department of Justice defines a hate crime as the violence of
intolerance and bigotry, intended to hurt and intimidate someone because of their race,
ethnicity, national origin, religion, sexual orientation, or disability.' The most recent
statistics compiled by the F.B.I. show 7,649 bias-motivated incidents involving 9,035
separate offenses.2 Inasmuch as the Constitution does not give the federal government
general police powers, federal law ordinarily does not reach murder, rape, arson, assault
or vandalism. Federal hate crime legislation must draw on one or more of the powers that
the Constitution does vest in the federal government. Early proposals relied upon the
power to regulate interstate commerce and to implement the Fourteenth Amendment, but
1 Community Relations Service, U.S. Department of Justice, Hate Crime: The Violence of
Intolerance, available on November 21, 2005 at
[http://www.usdoj.gov/crs/pubs/crs-pub-hatecrimebulletin_1201.htm].
2 Federal Bureau of Investigation, Hate Crime Statistics, 2004, available on November 21, 2005
at [http://www.fbi.gov/ucr/hc2004/openpage.htm].
Congressional Research Service + The Library of Congress](ViewImageLocal?handle=hein.crs/crsuntaabxp0001&div=1&collection=&method=preview&ext=.png&size=3)
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