President Obama having signed into law a federal hate crimes statute, a two-week-old post at Crooked Timber has been brought to my recollection, not on account of any especial excellence, but for reason of the perplexity it occasioned, then and now.
John Holbo, criticizing John Boehner, argued as follows:
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.)
And this is where I'd like to request the assistance of my co-bloggers and commentators. I never made it to graduate school, for reason of some familial matters not entirely happy, and in consequence I gravely fear that there is some cabalistic point of logic here that eludes my intellect. Hence, I beg the assistance of the professional philosophers in the W4 blog community, that this matter may be settled in my mind.
If all crime, for reason of mens rea and the necessity of establishing intent, is - under one aspect - thought crime, and this new legislation, by intention and execution, will establish certain mental states as exacerbating factors in criminal cases, how then is the conservative critique, however ineptly articulated it may be by any one conservative, vitiated by Holbo's criticism? How, in other words, is this not a case of, "some thought crimes are more criminal than others?"
What am I missing?