I have long expressed admiration for the American Civil Liberties Union for ardently defending the Constitution in our legislatures and courts, including the Supreme Court. Since September 2001 the ACLU has had a much tougher task thanks to the Bush-Cheney and Obama administrations. At times, however, I have strongly disagreed with ACLU Executive Director Anthony Romero. Such was the case after a jury acquitted Florida neighborhood watch volunteer George Zimmerman—on grounds of self-defense—of fatally shooting Trayvon Martin. Romero wrote to Attorney General Eric Holder Jr. and said “it is imperative that the Department of Justice thoroughly examine whether the Martin shooting was a federal civil-rights violation or hate crime.”
Years ago I had a particularly long, fierce argument with Romero. I tried to explain that giving a convicted defendant additional prison time for a so-called hate crime violates the First Amendment because it imposes punishment of thoughts, not actions.
I brought James Madison into my argument with Romero. He was the Founding Father who introduced the Bill of Rights—including what came to be the First Amendment—to Congress. Madison had previously written to Thomas Jefferson after the Virginia Statute on Religious Freedom was passed: “We have in this country extinguished forever…making laws for the human mind.” No American, Madison emphasized later, would be punished for his “thoughts.”