Anyone Can Be "Not Racist" To Someone (With Bonus Right/Libertarian Intercession!)

After viciously beating an African-American man in an Iowa bar,  Randy Joe Metcalf was convicted of a federal hate crime and sentenced to 10 years in prison. In relevant part, the federal statute says that "[w]hoever . . . willfully causes bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person . . . shall be imprisoned not more than 10 years, fined in accordance with this title, or both[.]"

The evidence surrounding the "because of" race element of the crime against Metcalf was substantial (and -- fair warning -- quite graphic). During the night of the attack (and into the following day), witnesses heard or saw Metcalf:

• Brag about burning crosses in front of an African-American family's home.
• Tell the bar owner "I hate fucking niggers."
• Show off a tattoo of a swastika to said bar owner and another bar patron while saying "that's what I'm about."
• Call the friends of the African-American man whom he'd later attack "nigger lovers" and "nigger loving cunts."
• Exclaim, in the course of attacking the man, "fucking nigger!" and "die nigger!"
• Tell a friend the following day that "the nigger got what he had coming to him."

What was Metcalf's main factual defense at trial?

That he wasn't racist. And indeed, the man with the swastika tattoo who savagely beat a man while hurtling racial slurs called seven witnesses who were prepared to testify that he was in no way a racist.

Un(?)surprisingly, the jury didn't buy it, and voted to convict. And the Eighth Circuit just affirmed that conviction, so it looks like Metcalf will spending quite some time in prison.

That was all I initially planned to write. But while rereading the case for this post, I came across another interesting tidbit: Metcalf had some powerful right-wing/libertarian allies filing amicus briefs on his behalf. The Cato Institute, the Reason Institute, The Individual Rights Foundation (an arm of the David Horowitz Freedom Center), the Center for Equal Opportunity, and two right-wing appointees to the United States Civil Rights Commission (Gail Heriot and Peter Kirsanow) all interceded to argue that the relevant provision of the federal hate crimes statute is unconstitutional as in excess of Congress' enforcement power under the 13th Amendment (I've read all the briefs, though it seems only the Cato Institute's is publicly available).

Now to be clear, even repulsive White supremacists have rights, and I don't think it's an endorsement of White supremacy to file an amicus brief in a White supremacist's criminal case. But it is worth tracing the precise argument these groups felt so passionately about that they'd intercede on behalf of a guy like Randy Joe Metcalf. 

Part of their argument is that the 13th Amendment only permits barring so-called "badges and incidents" of slavery (such as being targeted for physical assault on basis on one's race) when it is necessary to prevent the literal reimposition of slavery. Since, amici argue, there is no realistic change of literal slavery reemerging, it is no longer (if it ever was?) necessary for the federal government to ban racially-motivated assaults in order to pursue the constitutional ends of abolishing slavery (if you think they've been emboldened by Shelby County, you're right).

The other half of the argument is that hate crimes prosecutions, in particular, are a dangerous tool to give to the federal government because they're more susceptible to public outrage and thus "double jeopardy" prosecutions. This is a highly revealing argument. The double jeopardy clause doesn't apply when the federal government prosecutes its own criminal law (even after a completed state prosecution covering the same incident). The amici argue that the federal law here exceeds Congress' constitutional authority; but if that's the case the double jeopardy complaint is superfluous -- the law's just unconstitutional in its own right. So what's the point of bringing up double jeopardy?

The point is one of policy, or more accurately, of worldview. The argument is that "hate crimes" are particularly likely to arouse public anger and legal response, and that therefore we're more likely to see zealous prosecution (up to and including using these federal laws to get a "second bite at the apple" in the event an initial state prosecution fails). In doing so, the Cato Institute and its cohort wish to evoke a particular vision of civil rights laws -- wherein they're mainly a tool of oppression and governmental overreach and so must be highly limited and closely watched. They present a world where the government can hardly resist the pleas of minority communities for justice in the case of racist crimes; where the main problem when it comes to race in our society is too much zealousness in protecting outgroups. Who will think of the poor White supremacist, reviled by all and protected by none (except, of course, a President who thinks some among his number are "good people")?

It was difficult to swallow this logic in 2013, when Shelby County was decided. In 2018, it would be laughable save for the fact that it appears to be virtually indestructible. Just as for some people there's no amount of evidence that could establish someone to be racist, for some organizations there's no amount of evidence that could establish racism as an actual, non-trivial problem in American society.