Libertarianism and conservatism have been described as “uneasy cousins.” There are some issues where they can unite in opposition to the terrible policies of progressives: the green new deal, universal health care, free college tuition, gun-control laws, taxpayer-funded abortions, defunding the police, etc. But even when they seem to agree on something — like hate-crimes laws — the inconsistency of conservatives is apparent because they lack the firm philosophical foundation of libertarianism.
The concept of a “hate crime” is a recent invention, going back to about the mid-1980s. According to the U.S. Department of Justice, “In the simplest terms, a hate crime must include both ‘hate’ and a ‘crime.’” In hate-crime law, “the word ‘hate’ does not mean rage, anger, or general dislike.” Rather, in this context, “‘hate’ means bias against people or groups with specific characteristics that are defined by the law.”
At the federal level, “Hate crime laws include crimes committed on the basis of the victim’s perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.”
This is in addition to hate-crime laws on the state level, which “include crimes committed on the basis of race, color, and religion; many also include crimes committed on the basis of sexual orientation, gender, gender identity, and disability.”
In hate-crime law, “Crime is often a violent crime, such as assault, murder, arson, vandalism, or threats to commit such crimes,” but it “may also cover conspiring or asking another person to commit such crimes, even if the crime was never carried out.” According to the FBI’s 2021 hate-crime statistics submitted by 11,834 law enforcement agencies, “there were 7,262 hate crime incidents involving 8,673 offenses.”
Hate-crime laws are expanding on the state level. A case in point is Michigan, where a series of hate-crime bills passed the Democratic-controlled state house earlier this year. According to the official legislative analysis,
House Bills 4474 and 4476 would amend the Michigan Penal Code to revise provisions that prohibit hate crimes and to define and prohibit institutional desecration, respectively. The bills would provide for enhanced penalties based on factors such as prior convictions, allow a court to impose alternative sentences under certain conditions, and respectively modify or allow for a civil cause of action. House Bills 4475 and 4477 would make complementary changes to the sentencing guidelines in the Code of Criminal Procedure.
The most egregious bill, House Bill 4474, “would provide that a person is guilty of a hate crime if they maliciously and intentionally do any of the following to another individual based in whole or in part on an actual or perceived characteristic of that individual, regardless of the existence of any other motivating factors”:
- Use force or violence on the other individual
- Cause bodily injury to the other individual
- Intimidate the other individual
- Damage, destroy, or deface any real, personal, digital, or online property of the other individual without that individual’s consent
- Threaten, by word or act, to do any of the above
Actual or perceived characteristics include any of the following: race or color, religion, sex, sexual orientation, gender identity or expression, physical or mental disability, age, ethnicity, national origin, or association or affiliation with an individual or group of individuals in whole or in part based on one of these characteristics.
Only two Republicans in the Michigan House voted for the bill. “It’s a bill that intends to bring prosecution for hurt feelings,” said Rep. Brad Paquette. “The bill is founded in pure narcissism and victim mentality that’s built upon gender theory. It’s one that seeks to force others who adamantly disagree with gender theory to live in another’s delusion.” Other Republicans viewed the bill as part of a larger effort from the Left to “control how we talk.” According to Rep. Gina Johnsen, the bill will “crush people’s ability to have a political opinion, to have a religious opinion, to have a moral opinion, or an immoral opinion.” She even predicted a “huge migration of people leaving Michigan” if the bill became law. This Republican opposition to the bill comes as no surprise.
Conservatives and hate crimes
It was 10 years ago in the progressive magazine The Nation that the observation was made that “the groups who are most vehemently against hate-crime legislation are highly conservative, often overtly homophobic groups, such as Focus on the Family and Concerned Women of America, who fear that such legislation would impede conservative religious people from voicing their beliefs and upholding what they see as ‘traditional values.’” Nothing has changed. Conservatives still generally oppose hate-crimes laws. Psychology Today recently reported on a study “examining the interconnectedness of political views, prejudice, and support for hate crime laws.” The study found that “political beliefs strongly correlate with support for hate-crime laws, or its lack, with individuals leaning toward conservative ideologies less likely to back such laws” and concluded that “resistance to hate crime laws among conservative-leaning individuals might be partly due to underlying biases.”
It has been pointed out that high-profile cases often drive hate-crime laws. Republicans in Congress, although they may tout their conservative credentials come reelection time, are not immune from public pressure when it comes to such cases. The Emmett Till Antilynching Act (H.R.55), which makes lynching a federal hate-crime offense, passed in 2022 by unanimous consent in the Senate. In the House, only three Republicans voted against it. The COVID-19 Hate Crimes Act (S.937), which facilitates the expedited review of hate crimes and reports of hate crimes, was passed in response to violence targeting Asian Americans during the pandemic. Only one Republican (Josh Hawley) in the Senate voted against it. Sixty-two conservative Republicans voted against it in the House, but this was not enough to overcome the 147 Republicans who voted in favor of the legislation. (It should be pointed out that in 2023, Sen. Hawley called on the FBI to open a federal hate-crime investigation into the shooting of children at a school in Nashville — ah, the consistency of conservatives.) Nevertheless, at the state and grassroots level, conservative resistance to hate-crime legislation remains solid. These conservatives would join with libertarians in opposing hate-crime legislation.
There are two main reasons for this. First, if someone commits a crime of violence — murder, rape, assault, etc., or a crime against property — vandalism, arson, theft, etc., then he should be arrested, tried, and sentenced because he committed the crime. His reason, motivation, or justification for committing the crime is irrelevant. And there is no way to know for certain what was in the mind of the criminal at the time the crime was committed. Even in the case where someone claims that he committed a crime against someone else because he hated that person’s race, color, sexual orientation, religion, gender identity, or ethnicity, there should not be any additional penalty. This is because to punish someone for hating someone else based on some characteristic they possess is to punish freedom of thought. It is not illegal in the United States, nor should it be, to dislike, despise, or even hate people who belong, many times through no choice of their own, to some group — not as long as one does not act on those impulses.
And second, what constitutes a hate crime is not only extremely arbitrary but often depends on some characteristic of the perpetrator, not the victim. For example, although blacks are overrepresented among perpetrators of hate crimes, it is rare to hear black-on-white violence described as a hate crime. As conservative researcher Heather MacDonald of the Manhattan Institute pointed out a few years ago using Bureau of Justice statistics: “There were 593,598 interracial violent victimizations … between blacks and whites last year, including white-on-black and black-on-white attacks. Blacks committed 537,204 of those interracial felonies, or 90 percent, and whites committed 56,394 of them, or less than 10 percent.” Hate-crime laws don’t deter hate or crime any more than gun-control laws deter gun violence.
Because freedom of thought — no matter how vile, wicked, or hateful — is not in and of itself illegal, a hate crime needs a real crime before someone can be charged with committing one. This means that hate crimes are worse than victimless crimes, where no real crime is committed. This includes things price gouging, ticket scalping, usurious interest rates, selling alcohol on Sunday, providing a service without a license, discrimination, prostitution, illegal drug use, and gambling (without the state’s permission). The fact that a fine will be paid to the state and not the “injured party” when a victimless crime occurs shows that no real crime against anyone has been committed.
Every real crime needs a victim of the crime — not a potential victim or a possible victim but a tangible and identifiable victim who has suffered measurable harm to his person or measurable damages to his property. There can be no crime without a victim, which is why hate crimes, that is, thought crimes, are in and of themselves not real crimes. There should be, as far as the law is concerned, no such things as nebulous crimes against God, religion, nature, society, humanity, civilization, the greater good, the public interest, or the state. Only actions that cause harm to others or their property without their consent should be crimes. What is immoral or imprudent should not necessarily be illegal or criminal. Engaging in risky behavior, participating in dangerous activities, performing immoral actions, and partaking of substances that are harmful may be vices, but they are not, in and of themselves, crimes. Writing in “Vices Are Not Crimes: A Vindication of Moral Liberty” (1875), the classical-liberal political philosopher Lysander Spooner (1808–1887) explained it this way:
Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.
Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property, and the corresponding and coequal rights of another man to the control of his own person and property.
That does not mean that certain victimless crimes are not immoral, unhealthy, or harmful, nor does it mean that some victimless crimes don’t have any negative consequences.
But just because someone directly engaging in a vice may indirectly affect someone else does not mean that a victimless crime can have a victim. The case of someone high on marijuana who neglects his child, who then wanders out into the street and gets hit by a car, does not “prove” that smoking marijuana is not a victimless crime. The “crime” here is child neglect resulting in death, not smoking marijuana. No one would say that because someone drunk on alcohol neglects his child, who then wanders out into the street and gets hit by a car, that drinking alcohol should be criminalized. There is such a double standard when it comes to alcohol and marijuana and cigarette smoking and marijuana. Drinking alcohol and smoking cigarettes leads to all kinds of health issues, but how many Americans want it to be against the law to drink alcohol or smoke cigarettes in the privacy of one’s home? And speaking of children, a child in the home of a cigarette smoker is suffering much more damage to his health than being in the home of some who occasionally snorts cocaine. How many Americans want it to be against the law to smoke a cigarette in a home with children in it? Divorce has negative consequences for children, yet how many Americans want it to be against the law to get a divorce? A contemporary of Spooner, John Stuart Mill (1806–1873), said it best in On Liberty (1859):
The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.
Individual liberty is the only victim in a victimless crime.
Conservatives and victimless crimes
Since hate crimes are worse than victimless crimes, and victimless crimes are no crimes at all, surely conservatives are united with libertarians in opposing both hate crimes and victimless crimes? On the contrary, conservatives are some of the most vocal proponents of certain victimless-crime laws. They are really quite inconsistent, not only in rejecting hate crimes while favoring victimless crimes but also in wholeheartedly rejecting some victimless crimes while readily embracing others. Some conservatives scoff at laws against economic activities like price gouging and ticket scalping. When it comes to the subjects of gambling, occupational licensing, and discrimination, conservatives are typically of two minds. They support government-regulated gambling, like state lotteries, but oppose letting you organize a neighborhood blackjack tournament. They support the licensing of some occupations, but then reject the licensing of others. They support antidiscrimination laws when it comes to race, sex, national origin, and religion but reject them when it comes to sexual orientation and gender identity. Conservatives almost unanimously champion victimless-crime laws against prostitution and drug use.
None of this should come as any surprise. Conservatives never seem to have an issue with a law or government program unless the law or program goes against some conservative position. They oppose federal funding for Planned Parenthood because the organization performs abortions but not because the federal government shouldn’t be funding private organizations to begin with. They criticize NPR for having a liberal bias but not because the federal government has no business being involved in broadcasting. They condemn the National Endowment for the Arts (NEA) for funding pornographic art, but not because the federal government has no business funding the arts. They disparage public schools for promoting political correctness but not because the federal government has no business funding education.
How can conservatives be so inconsistent? The answer is really quite simple. They lack the firm philosophical foundation of libertarianism. They don’t accept the freedom of individuals to do anything that’s peaceful as long as they don’t violate the personal or property rights of others. They consider it the job of government to prevent people from, or punish people for, harming themselves with actions or substances. They believe that people should be fined or imprisoned for engaging in private, peaceful, consensual behavior or peaceful activity that doesn’t violate anyone’s personal or property rights.
Although they may admire him as an economist, conservatives should heed the advice of Ludwig von Mises (1881–1973) when it comes to the question of individual liberty: “A free man must be able to endure it when his fellow men act and live otherwise than he considers proper. He must free himself from the habit, just as soon as something does not please him, of calling for the police.”
This article was originally published in the December 2023 edition of Future of Freedom.