After showing off his swastika tattoo, Randy Metcalf became involved in a bar brawl. One of his opponents was an African-American, who he and his friends knocked unconscious. Metcalf repeatedly kicked him in the head and, according to a witness, said, “Die, (N-word), die.” Metcalf was sentenced to 10 years in prison under the federal Hate Crimes Prevention Act that was enacted six years earlier, in 2009.
Soon, the Supreme Court will decide whether or not to hear Metcalf’s argument that the provision of the HCPA that he was convicted under is unconstitutional because none of the Constitution’s enumerated powers authorized Congress to enact it. The court should hear and endorse this argument, lest the nation’s dangerously attenuated commitment to limited government become even more so.
The HCPA creates criminal penalties for, among other things, crimes committed “because of the actual or perceived race … of any person.” Actual hatred is not required. It is enough that the defendant acted “because of” somebody’s race.
Congress, always eager to slip what little remains of the Constitution’s leash that limits Congress’ powers by enumerating them, frequently justifies doing whatever it wants by saying that the behavior it wants to proscribe or prescribe affects interstate commerce and therefore comes under Congress’ enumerated power to regulate this. But although the Commerce Clause has been construed to be so elastic that it is almost entirely permissive, Congress, perhaps manifesting a vestigial capacity for embarrassment, looked elsewhere for the power to prohibit racially motivated crimes.
