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Unintended Consequences

A statute’s words do not tell how the law will be interpreted and applied.

All laws are expansively interpreted. For example:

The Racketeer Influenced Corrupt Organizations Act (RICO) was directed at drug lords. Nothing in the law says anything about divorce; yet it soon was applied in divorce cases.

The 1964 Civil Rights Act explicitly bans racial quotas and defines racial discrimination as an intentional act. Yet, quotas were imposed by the civil rights bureaucracy on the basis of the 1964 Act, and intent was replaced by statistical disparity.

The Clean Water Act makes no reference to wetlands and conveys no powers to the executive branch to create wetlands regulations. Yet, for example, Ocie and Carey Mills, who had a valid Florida state permit to build a house, were imprisoned by federal bureaucrats, who claimed jurisdiction under the Clean Water Act. The bureaucrats ruled that the clean dirt used to level the building lot constituted discharge of pollutants into the navigable waters of the U.S. No navigable waters were involved, and according to the state of Florida, no wetlands.

The Exxon Valdez accident was criminalized. An unintentional oil spill became the intentional discharge of pollutants without a license, and the bird kill became killing migratory birds without a license. An accident was prosecuted as crimes of intent.

Well informed attorneys can provide many examples. Others are documented in The Tyranny of Good Intentions. Awareness of what can be pulled out of even clearly written laws is essential to the preservation of civil liberty.

With this in mind, consider the Hate Crimes Prevention Act.

Opponents criticize the bill for adding a second punishment to existing punishments for acts of violence. Assault, murder, rape are crimes regardless of motivation. The penalties are sufficient, or can be made so, without applying a new crime of motivation that creates specially protected classes, such as homosexuals and minorities. To commit a violent act against a member of a specially protected class will carry a heavier punishment.

How will a court know whether a violent act was committed because of hatred or because of sexual lust or the need for money? As case law is made, the likely direction will be to eliminate intent. The issue will be resolved by whether the attacked person is a member of a protected class. The mugger who beats as well as robs a victim who turns out to be homosexual or Jewish will have committed a hate crime.

It will prove difficult to separate speaking against members of protected classes, or criticizing their practices, from hate. The two things are easily conflated. Once enacted, hate crimes will become independent of specific violent acts. An eventual likely outcome will be that speaking against members of specially protected classes will itself become a violent act of inciting violence.

Since the passage of the Global Anti-Semitism Review Act in 2004, the US Department of State is required to monitor anti-semitism world wide. The State Department is not required to monitor anti-Americanism or sentiments against Christians, Muslims or Arabs. Thus, the act created a specially protected class worthy of careful monitoring by the US Department of State of negative sentiments expressed against Jews.

In order to monitor anti-semitism, the term must be defined. The definition is subjective and will be widely, rather than narrowly, interpreted. The State Department has come up with its attempt. The State Department’s approach could include any truthful statements about Israel and its behavior toward the Palestinians that the Israeli government or AIPAC or the Anti-Defamation League would deny or contest.

Anti-semitic speech can be interpreted as inciting hatred. Inciting hatred can be interpreted to be a violent act. “Excessive” criticism of Israel is a subjective, undefinable concept that can be used to determine anti-semitic speech. It is easy to conflate “excessive” with “strong.” Thus, demands that Israel be held accountable for war crimes committed in Gaza, the West Bank, Lebanon, or elsewhere become acts of the hate crime of anti-semitism.

PAUL CRAIG ROBERTS was Assistant Secretary of the Treasury in the Reagan administration. He is coauthor of The Tyranny of Good Intentions.He can be reached at: PaulCraigRoberts@yahoo.com

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Paul Craig Roberts is a former Assistant Secretary of the US Treasury and Associate Editor of the Wall Street Journal. Roberts’ How the Economy Was Lost is now available from CounterPunch in electronic format. His latest book is The Neoconservative Threat to World Order.

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