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April 13th, 2012

Trayvon Martin – A Federal Hate Crime?

By Nathan Tucker

In the aftermath of unrestrained liberal hysteria over the Trayvon Martin shooting in February, the U.S. Justice Department decided to open an investigation into the incident.  Without so much as a thought about the constitutionality of such action, members of the party that allegedly stands for a federal government of limited, enumerated powers were quick to praise the federal investigation.

Republican presidential candidate Mitt Romney issued a statement that ‘there needs to be a thorough investigation that reassures the public that justice is carried out with impartiality and integrity.”  Senate Minority Leader Mitch McConnell (R-Ky) told reporters that he’s “glad it’s being investigated.”  Tea Party favorite and potential Republican Vice-Presidential nominee Rep. Allen West (R-Fla) called the shooting “an outrage” and that he had “signed a letter supporting a DOJ investigation.”

Sadly, not a single member of the GOP questioned the constitutionality of federal hate crime charges that could potentially be brought by the DOJ against the shooter, George Zimmerman.  To date, there is no evidence that would prove beyond a reasonable doubt that Zimmerman unjustifiably shot and killed Martin because he was black.

Assuming, however, that such evidence existed, there is no constitutional provision that would allow Congress to make such a murder, no matter how heinous, a federal crime.  Though we may like the desired result, the Constitution’s boundaries are firm and unchangeable no matter how much we would like to make an exception “just this one time.”  The Constitution is an equal opportunity prohibition on federal authority.

Current federal hate crime law punishes crimes committed “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability” of the victim.

Two separate Democratic Justice Departments have argued that the statute is constitutional under the 13th Amendment, which reads that:  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

How is it that one can read the 13th Amendment to prohibit criminal activity, though racial in nature, if it has nothing to do with “slavery or involuntary servitude?”  One can’t, unless you happen to be a justice on the Supreme Court.  In the Civil Rights Cases of 1883 the Court held that “Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents.”

Subsequent cases have taken the phrase “badges and incidents” and stretched it beyond any tenuous connection to slavery.  In Griffin v. Breckenridge (1971), for instance, the Court held that “the varieties of private conduct that [Congress] may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude…Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery.”

These subsequent decisions have overlooked the fact that the Court, in the Civil Rights Cases of 1883, explicitly rejected this extension.  After noting that the 13th Amendment “has respect not to distinctions of race or class or color, but [only] to slavery,”  the Court concluded that “it would be running the slavery argument into the ground to make it apply to every act of [private] discrimination..Mere discriminations on account of race or color were not regarded as badges of slavery.”

Proponents of federal hate crime legislation also argue for its constitutionality under the Supreme Court’s unconstitutional Commerce Clause precedent.  Indeed, the statute requires some nexus to interstate commerce in order for it to be applicable.  But how could Martin’s death, which took place within a single state, be connected with interstate commerce?  Because it partly took place on a road (i.e., a “channel of interstate commerce”) and the gun was likely manufactured out-of-state.

Seem far-fetched?  Last month 12 individuals were charged under the statute for an Amish-on-Amish “hate crime” in Ohio.  Their connection to interstate commerce? They traveled on roads to commit the crime, and the clippers used in the assault had been manufactured out-of-state.  Originally understood, however, the Commerce Clause didn’t even reach such activity as agriculture, production, or manufacturing, much less non-commercial intra-state road travel.

In the end, there is nothing in the Constitution that provides Congress with the power to criminalize hate crimes, and, rather than praising it, Republicans should have denounced the DOJ investigation of Zimmerman as an unconstitutional extension of federal power.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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