By Adam Pruzan


Jewish Support for Federal Hate Crimes Law Is Penny Wise and Pound Foolish

By Adam Pruzan

Most of the Jewish organizations-national and local-that represent our community in the political arena are supporting the proposed Hate Crimes Prevention Act, now before the US Congress. However, this poorly-written measure is blatantly unconstitutional, and backing such wrongful attempts to expand federal power can only hurt Jews in the long run. Unfortunately, few of our community leaders and activists seem to realize the danger in their own apathy toward America's constitutional system.

One such leader told me that she simply wants to advocate for Jewish moral beliefs, without regard to constitutional questions. If that means issuing a generic pronouncement about the evil of hate crimes, fine. But if you're lobbying Congress to enact a specific law, you should ask hard questions about that law, including whom it might hurt, how it will be enforced-and whether or not it is constitutional.

I've also been told that "constitutionality issues belong in the courts," because few of our community leaders are experts in such matters. There are two problems with that. First, presidents, senators, and representatives take oaths to uphold the Constitution as well as judges, so such questions certainly should be a part of the political debate. Second, in this case, the legal issue is hardly difficult or obscure. As I pointed out last month (in a presentation to the Community Relations Committee of Seattle's Jewish Federation), the Hate Crimes Prevention Act misuses the Constitution in exactly the same way as two other-very similar-federal laws that were recently struck down by the courts. Certainly, some constitutional questions should only be decided by experts-I wouldn't want an amateur brain surgeon, either. But in this case, avoiding the issue for lack of "expertise" is like saying you need a brain surgeon to put on a Band-Aid.

Most troubling, however, were two apparently off-the-cuff dismissals of my concerns: One on the ground that the Constitution is a "fluid document," whose meaning constantly changes, and the other-clearly related-that the upcoming presidential election could easily change the makeup of the Supreme Court, and with it, the determination of what is and is not constitutional. That seems to sum up the attitude of many local leaders.

Let us grant that most Americans now accept much the same thing: The Constitution means whatever the Supreme Court says it means, the makeup of the Court is determined by the political process, and judges are chosen not only for their judicial philosophy and temperament, but also on their opinions about particular changes that various constituencies want read into the Constitution. We have then reached the predicament chillingly described by Justice Antonin Scalia: "If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that." And, Scalia concludes, "This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: The majority."

It's one thing for most Americans, through sloth or indifference, to accept the pseudo-sophisticated myth of a "fluid Constitution." It's quite another thing for Jewish Americans, as members of a historically persecuted minority, to fall into the same trap-and it's particularly worrisome when our community leaders do so.

We Jews have experienced centuries of peace, freedom, and prosperity in America. Certainly, our community organizations, including ADL, AJC, and others, have contributed something to this-particularly in the first half of the 20th century. But the ultimate source of our security has been the American tradition of "liberty and justice for all," whose bulwark is the Constitution. If we as Jews fail to respect and defend the Constitution, we will be collaborating-if only by default-in a process that, as Justice Scalia so eloquently warns, ultimately surrenders our rights to the whim of any political majority that comes along.

As Jews, we should cling as hard as we can to the old-fashioned notion of a rock-solid, unchanging Constitution, because that is the only ultimate guarantee of our own security. And we should trim the sails of our lobbying efforts accordingly-even if that means taking a pass on the latest hate crimes bill. Any other course is penny wise and pound foolish.

Adam Pruzan is Program Director of Toward Tradition, in Mercer Island, WA.

Toward Tradition is a national educational movement of Jews and Christians and other Americans seeking to advance the nation toward traditional, faith-based, American principles of constitutional and limited government, the rule of law, representative democracy, free markets, a strong military, and a moral public culture.

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