Democrats' 'Anti-Lynching' Law Makes a Mockery of Real Lynching Victims

When most Americans think of lynching, they summon images of the horrific murders of American blacks, particularly in the years of the Jim Crow South. To describe such murders as "bias-motivated acts of terror," as Cory Booker has, would certainly be accurate. "This bill," Booker says, "will not undo the damage," but it "will acknowledge the wrongs in our history. It will honor the memories of those brutally killed." So, when Senate Democrats offered their proposed new law, the Justice for Victims of Lynching Act of 2018, I had assumed that it would be a symbolic congressional action to recognize these injustices that took place and to honor the victims. Considering that the act passed the Senate unanimously, that's likely what most senators also believed.

But that's not what the act is, and that's certainly not its intent. The real purpose of the act appears to be the legal redefining of the word "lynching" to include a include a much broader scope of lesser crimes, and to grow the federal government's power to prosecute these lesser crimes that it includes in its new definition. Lynching is not a problem in the United States anymore, and the language of the act affirms that fact unequivocally. The act cites that at least "4,742 people, predominantly black African-Americans, were reported lynched in the United States between 1882 and 1968." The act then goes on to describe efforts by Congress before 1968 to "end lynching," and it also references its efforts since 1968 to "apologize to the victims of lynching and their descendants." But never once does the initial "findings" section of the act suggest that acts of lynching are still prevalent, therefore requiring new powers or correction today, because no data as to lynching in America are provided beyond the year of 1968. These numbers cited appear to have been drawn from a study by the Tuskegee Institute, which defines lynching thusly: "There must be legal evidence that a person was killed. That person must have met death illegally. A group of three or more persons must have participated in the killing. The group must have acted under the pretext of service to justice, race or tradition." So even in the definition used by the only study that the act cites, there is admission that "lynching" is not defined explicitly as a race-related crime. That same study finds that nearly 1,300 whites were lynched in that same timeframe who likely weren't murdered because they were white. Consider the lynching of the notorious Ruggles brothers. In May of 1892, brothers John and Charles Ruggles were captured after robbing a stagecoach in Northern California. While they were imprisoned in Redding, California, it had become apparent that the two young outlaws were quite the hit with the ladies around town, who brought the men flowers, cakes, and "even offers of marriage." That didn't sit too well with other men around town, so four days before their official trial, a group of masked men grabbed them from their cell in Redding and hanged them from a derrick without trial. That is a perfectly fitting example of a lynching, albeit not one that most would conjure when hearing the word. The point is, the word has always had a specific, practical meaning, and it is nothing like the one Senate Democrats are presenting. Here's something interesting to consider. The alleged attack against Jussie Smollett would certainly not, in the commonly understood definition throughout history, be considered a "lynching." But it would fit the definition of a "lynching" in the Democrats' newly proposed law. The act appropriates for the federal government the right to completely remove the most basic requirements for a crime to be defined as a "lynching," now declaring that a "lynching" is any act where "2 or more persons willfully cause bodily injury to any other person, because of the actual or perceived race, color, religion, or national origin of any person." According to this definition, a Hasidic Jew being punched by two black guys is now to be defined by the same word we've used for decades to describe a mob of racist whites hanging an innocent black man. The language of the act then becomes very careful. It continues with a separate clause defining lynching to include attacks based upon the "gender, sexual orientation, gender identity, or disability of any person." That language mirrors, verbatim, that used in the Hate Crimes Prevention Act of 2009. The only difference is that one or more people committing to such an attack is a "hate crime," according to the previous legislation's description of the crime. Now, when two or more people do the same thing, it's a "lynching." Some Americans took notice of the illogical inclusion of attacks against gays or transgenders as an example of "lynching." After all, isn't this bill ostensibly meant to "honor the victims" of the actual travesty of lynching in America? And there is not one cited historical precedent in the bill of lynching suffered by homosexuals or transgenders. Activist Tariq Nasheed went so far as to suggest that the attack against Jussie Smollett, a black gay man, aligns too perfectly with these added non sequiturs to address the "lynching" of gay Americans. He suggests that Kamala Harris was involved in Smollett's orchestrating the hoax, ostensibly to justify the inclusion of language defining any attack "meant to do bodily harm" by "2 or more people" due to the victim's sexual orientation as a "lynching." The coincidences of Jussie Smollett's alleged attack aligning perfectly with the curious language of Democrats' proposed anti-lynching law don't end there. It is broadly imagined by the proponents of limitless government expansion that regulating crimes of race-related bias is a federally protected power that derives from the Thirteenth Amendment's allowing Congress the power to eliminate the "badges, incidents, and relics" of slavery. But the federal power to prosecute crimes motivated by non-race-related bias relies primarily upon the Commerce Clause. Therefore, the act also includes the same ridiculous caveats as previous federal hate crime legislation to justify such intrusion into the jurisdiction of the states. For any of these attacks against a homosexual or transgender person to be deemed a "lynching," and therefore federally prosecutable under the new law, the defendant or victim must be traveling "across State or national lines" or utilize a "channel, facility, or instrumentality of interstate or foreign commerce in connection" to the crime, or using a "a firearm, dangerous weapon, explosive or incendiary device," or interfering "with commercial or other economic activity in which the victim is engaged at the time" of the attack. That same language, again, exists almost verbatim in the 2009 Hate Crime Prevention Act. Here's what's new: according to the "Justice for the Victims of Lynching Act," if the attack occurs "during the course of, or as a result of," the "defendant or the victim ... using a phone, the internet," or "the mail," then the crime might now be subject to federal prosecution under the new law. Jussie Smollett claimed to be on the phone with his manager when he was allegedly attacked. Since he claimed that he was attacked for his race, this crime would be subject to federal prosecution under the new law for that alone — again, due to law's assumption of federal jurisdiction by the Thirteenth Amendment. But the fact that he was on the phone, and that the alleged attackers could be seen as interfering with his "economic activity," would make the fact that he was allegedly attacked for his sexual orientation also federally prosecutable for that reason. While it may signify nothing more, there are marvelous coincidences in the circumstances of Jussie Smollett's hate crime hoax and the circumstances described in the language of the act, which would legally deem it the "modern day lynching" that Kamala Harris immediately claimed it was. It is not hyperbole to say that this language in the Democrats' proposed law makes a mockery of every victim of an actual lynching in America's history. They are using the horrific legacy of lynching against blacks in the Jim Crow South to advance a political agenda that has nothing to do with honoring the murdered victims of historical racism and everything to do with advancing federal power and identity politics at the expense of the memory of the true historical victims of racism. But I have to admit, it's pretty brilliant of them, politically. It has become sadly apparent that Congress doesn't read the legislation it considers. Since no one will read the bill, how could anyone possibly be against a "Justice for the Victims of Lynching Act"? William Sullivan blogs at Political Palaver and can be followed on Twitter.