It is a crime to commit a crime. It is not a crime to hate while you’re doing it.

Since the Kansas City JCC and Jewish nursing home killings — it so happens I swim nearly every day at a JCC in my town, and my father-in-law has just entered The Jewish Home for the Aged in Riverdale, with my wife over there nearly every day — I am lost again in this concept of “hate crime.” It has seemed to me, since they thought this one up in the late 80s (that’s a guess-memory), that there is no way for this concept on the local or federal level to withstand constitutional scrutiny. If I shoot you and kill you, I have committed murder, and once convicted I will serve the time normally allotted. It can’t be MORE of a crime if I kill you because I hate you, your group, your skin color, your convictions. These are not acts, these are beliefs.

We did not demand, before ratifying the constitution, the first ten amendments, ccommonly called “the Bill of Rights”,  because we thought all the nice people with nice convictions and nice things to say should be protected from the majority. We thought dangerous people with unpopular convictions and infuriating things to say needed that protection.

Am I missing something here, legally, constitutionally? Has the concept never come before the Supreme Court for adjudication? I feel like going out and committing a (mild) hate crime just to make a test case. My wife would be furious. My older sons would be disgusted. My young one would be a little heartbroken. So I won’t.

Meanwhile this Missouri Klansman is a hard case. He’s been spouting this stuff in public places and online for years. Somewhere like Germany, a dignity-based legal system rather than a rights-based legal system (my friend Joyce Hackett gave me that distinction) this dude would have been in jail already years ago, and those people would not have been shot and their families would not be wrecked with this catastrophe, from out of nowhere.

And yet, I like the freedom better. It is expensive. It hurts. But every time some terrifically guilty person is not imprisoned because the rule of law does not allow him to be imprisoned, we are not made weaker as a society. We are made stronger. This may be the last domain of American courage. It seems to me that the designation of “hate crimes” is exactly what the founders meant to protect us against.

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