Steve Benen ponders John Boehner on hate crimes: “The Democrats’ ‘thought crimes’ legislation … places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance.” Benen: “if Boehner doesn’t want to consider the circumstances behind a violent crime, and doesn’t want to pursue “thought crimes,” then he’d necessarily reject the rationale behind every hate-crime law, right?” Benen goes on to note that, apparently, Boehner does not. He “supports existing federal protections … based on immutable characteristics.” Which Boehner thinks include religion, but not sexual orientation. Who knew?

There is, I think, an even more basic problem, which is theoretically interesting, which I would certainly like to see used to swat down Boehner-style arguments, and which I’ve never actually seen anyone make (but probably I just missed it). Practically all crime is ‘thought crime’ in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – ‘the act does not make guilt unless the mind be guilty.’ If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.)

This refutes the notion that there is something sinister and Orwellian about post-Drakonic/post-Hammurabian developments in criminal law. (Damn liberals and their newfangled political correctness!) It doesn’t follow that ‘hate crime’ legislation makes moral and practical sense, of course. We could have that discussion after Boehner is done looking up ‘immutable’ in the dictionary.