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.”1 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_hate_crime_bulletin_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

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then the Supreme Court held that those powers alone were insufficient to support a hate
crime statute prohibiting gender-motivated violence, United States v. Morrison, 529 U.S.
598 (2000). More recent proposals, such as H.R. 259 (Representative Jackson-Lee), H.R.
2662 (Representative Conyers), and S. 1145 (Senator Kennedy) in the 109th Congress,
take a layered approach in order to take advantage of authority in the commerce clause,
the spending clause, and the legislative clauses in the Thirteenth, Fourteenth, and
Fifteenth Amendments.3
The Commerce Power. Article I, section 8 of the Constitution enumerates
instances in which congressional action is permitted. The most popular enumerated
power has been the commerce clause, under which Congress is constitutionally
empowered “To regulate commerce with foreign nations, and among the several states,
and with the Indian tribes.” U.S. Constitution Article I, Section 8, clause 3. With its
popularity have come questions of how far Congress’s commerce clause powers might
go. Having established that a congressional exercise of power was valid if shown to
regulate activities “substantially affecting” interstate commerce, United States v. Darby,
312 U.S. 100 (1941), the Court in Wickard v. Filburn, 317 U.S. 111 (1942), upheld a
$117 penalty imposed on a farmer for growing wheat on 12 more acres than he was
permitted under the Agricultural Adjustment Act under a “cumulative effects” test — the
activity could be regulated if all the regulated activities of similarly situated individuals,
taken cumulatively — could have substantial effect on interstate commerce. The
cumulate effects test also convinced the Court to uphold provisions of the 1964 Civil
Rights Act that required the 216-room Heart of Atlanta Motel to rent its rooms to persons
regardless of race, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). For
essentially the same reasons, the Court recently upheld as a valid exercise of the
commerce power the federal ban on possession of marijuana, even when applicable state
law purported to authorize its possession for medicinal purposes, Gonzales v. Raich, 125
S.Ct. 2195 (2005).
Yet the power is not boundless. In United States v. Morrison, 529 U.S. 598 (2000),
the Court decided a suit brought by a former student of Virginia Polytechnic Institute who
alleged that she was raped by two university football players. The defendant players and
the university argued that the Violence Against Women Act, which allowed victims of
gender-motivated violence to bring federal civil suits for damages, was outside the scope
of the commerce power. The Court favored the position of the defendants even though
Congress had made specific findings that gender-motivated violence deterred interstate
travel, diminished national productivity, and increased medical cost, 529 U.S. at 615. The
Court concluded that upholding the Violence Against Women Act would open the door
to a federalization of virtually all serious crime as well as family law and other areas of
traditional state regulation, Id. at 615-16. The Court said that Congress must distinguish
between “what is truly national and what is truly local” and its power under the commerce
clause reaches only the former, Id. 617-18. In this context, the Court “has identified three
broad categories of activity that Congress may regulate under its commerce power. First,
Congress may regulate the use of the channels of interstate commerce. Second, Congress
is empowered to regulate and protect the instrumentalities of interstate commerce or
persons or things in interstate commerce even though the threat may come only from
3 For a more extended discussion of these bills and the legal environment in which they arise see,
CRS Report RL32850, Hate Crimes: Legal Issues, by Paul Starett Wallace, Jr.

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intrastate activities. Finally, Congress’s commerce authority includes the power to
regulate those activities having a substantial relation to interstate commerce,” 529 U.S.
608-609. Hate crimes that involve interstate travel are within the clause’s reach; hate
crimes with only an attenuated nexus to commerce are not. Of course, hate crimes
statutes that purport to “commandeer” state officials, requiring them to take affirmative
governmental action to implement commerce clause based legislation may also exceed
the clause’s authority, Printz v. United States, 521 U.S. 898 (1997).
Thirteenth, Fourteenth and Fifteenth Amendments. Each of the
Reconstruction Amendments contains a legislative clause, U.S. Const. Amends. XIII,
Section 5; XV, Section 2. Their breadth is defined by the scope of the Amendments of
which they are a part. The Fifteenth Amendment forbids either the federal government
or the states from denying or abridging the right to vote on the basis of an individual’s
race, color, or previous condition of servitude. The Fourteenth Amendment prohibits the
states from denying equal protection of the law, due process, or the privileges and
immunities of U.S. citizenship. In City of Boerne v. Flores, 521 U.S. 507(1997), the
Court held that the Fourteenth Amendment gives Congress the power to enact civil rights
statutes only if (a) the statute is designed to remedy a history of unconstitutional conduct
and (2) the remedy contained in the statute, such as requiring states to make reasonable
accommodations, is “proportionate” to the history of constitutional violations. Although
limited, Congress can “prohibit a somewhat broader swath of conduct” than that
prohibited by the Constitution, but only for the purpose of remedying or deterring
unconstitutional conduct, Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 63-5 (2000).
But Morrison made it clear that state action is a prerequisite. Section 5 does not authorize
legislation “directed exclusively against the action of private persons, without reference
to the laws of the state, or their administration by her officers,” 529 U.S. at 621. Hate-
driven denials of equal protection, of due process, or the right to vote by state officers or
those acting under the color of state law fall within the scope of the legislation sections
of the Fourteenth and Fifteenth Amendments; hate crimes by private individuals cannot
be reached under those sections.
Section 2 of the Thirteenth Amendment, however, stands on somewhat different
footing. The Amendment proscribes slavery and involuntary servitude without reference
to federal, state or private action. The Court has observed that “the varieties of private
conduct that” Congress “may make criminally punishable ... 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 incidents of
slavery, and the authority to translate that determination into effective legislation,” Griffin
v. Breckenridge, 403 U.S. 88, 105 (1971). Might Congress find that violence born of
bigotry constitutes just such a “badge and incidence” of slavery, and if so must its
remedial legislation be limited to the descendants of those for whose principal benefit the
amendments were adopted? The Court’s construction of civil rights legislation enacted
contemporaneous to the Reconstruction Amendments suggests that the legislative power
of those Amendments may be extended not only on the basis of descent but at least to a
limited extent on the basis of ethnicity and religion, Shaare Tefila Congregation v. Cobb,

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481 U.S. 615, 617-18 (1987)(protection of Jews); St. Francis v. Al-Khazaraii, 481 U.S.
604, 613 (1987)(protection of Arabs).4
The Spending Power. Article I, section 8, clause 1 empowers Congress “to lay
and collect taxes ... to provide for the ... general welfare.” There has been a general
consensus that Congress has expansive powers to attach strings to grants of federal
money, including grants to states. While the Supreme Court has indicated that there are
limits to this power, South Dakota v. Dole, 483 U.S. 203 (1987), these limits never
seemed to be an obstacle to conditioning grants of federal money upon states’ compliance
with certain civil rights obligations, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
123 (1984).
In South Dakota v. Dole, the Court considered a federal law that required the
Secretary of Transportation to withhold 5% of a state’s federal highway dollars if the state
allowed persons less than 21 years of age to purchase alcoholic beverages. South Dakota,
which allowed 18-year-olds to drink was in a position to lose federal funds for highway
construction and sued Secretary Dole, arguing that the highway funding law was not
related to setting a national drinking age. In upholding the federal law, the Court
announced a four-part test for evaluating the constitutionality of conditions attached to
federal spending programs: (1) the spending power must be exercised in pursuit of the
general welfare; (2) the grant conditions must be clearly stated, (3) the conditions must
be related to a federal interest in the national program or project, and (4) the spending
power cannot be used to induce states to do things that would themselves be
unconstitutional, 483 U.S. at 207-208. Therefore, Congress under its spending power
may condition grants of federal money on states’ compliance with specific obligations
under federal hate crime legislation if the four-part test for evaluating the constitutionality
of the conditions is met.
Limitations. The Bill of Rights imposes a number of limitations upon the manner
in which Congress exercises its otherwise available legislative authority. Two of these
deserve mention here. The First Amendment declares that “Congress shall make no law...
abridging the freedom of speech.” In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the
Court examined a local ordinance which made it a misdemeanor to “place on public or
private property a symbol, object, appellation, characterization or graffiti, including, but
not limited to, a burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender.” The Court found the ordinance unconstitutionally restricted
speech on the basis of its content. The Court noted that words that expressed hostility
toward a person because of his or her sexual orientation or political affiliation were not
prohibited by the ordinance. Because the ordinance restricted biases of a particular
nature, it barred only those viewpoints that the city council found distasteful, id. at 396.
4 See also S.Rept. 107-147, at 18 (2000), quoting a Department of Justice letter for the
proposition that “Congress would have the authority under the 13th amendment to extend the
prohibitions of” hate crime legislation “to violence that is based on the victim’s religion or
national origin, at least to the extent the violence is directed at members of those religions or
national origins that would have been considered races at the time of the adoption of the 13th
amendment.”

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Thus, the ordinance unconstitutionally allowed persons on one side of a debate to speak
freely while restricting the other side’s response, id. at 392.
One year later, the Court provided clarification by addressing the constitutionality
of other types of hate crime when it considered the constitutionality of a statute that
enhanced the penalty for criminal behavior motivated by prejudice. In Wisconsin v.
Mitchell, 508 U.S. 476 (1993), a group of young African-American males selected and
severely beat a white boy because of his race. Mitchell was convicted of aggravated
battery in connection with the assault and sentenced to four years in prison — two for the
battery and two under Wisconsin’s hate crime enhancement statute. Chief Justice
Rehnquist ruled that the enhancement law was constitutional because it punished violence
and the intent that gave rise to that violence, and not speech, id. at 485-88.5 Hate crime
statutes that selectively criminalize bias-motivated speech or symbolic speech are not
likely to survive constitutional muster; hate statutes that criminalize bias motivated
violence are likely to survive First Amendment challenge.
Hate crime statutes, however, may be subject to another constitutional challenge.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court overturned a hate crime
enhanced sentence because the facts upon which the sentence was based had been treated
as sentencing factors to be determined by the sentencing judge rather than presented to
the jury and found beyond a reasonable doubt as the Sixth Amendment requires. Of
course, Apprendi and later United States v. Booker, 125 S.Ct. 738 (2005), have everything
to do with the relative responsibilities of the judge and jury, and otherwise have nothing
to do with hate crime enhancements per se.
5 See also Dawson v. Delaware, 503 U.S. 159 (1992) and Barclay v. Florida, 463 U.S. 939
(1983). Barclay and Dawson upheld consideration of defendant’s hate driven motivation as an
aggravating factor for capital sentencing purposes.

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