« William Baude & Eugene Volokh: Compelled Subsidies and the First Amendment
Michael Ramsey
| Main | Kennedy, Kavanaugh, and Recess Appointments
Mike Rappaport
»

08/02/2018

Gail Heriot on Hate Crimes and the Thirteenth Amendment
Michael Ramsey

At Volokh Conspiracy, Gail Heriot (USD law/U.S. Commission on Civil Rights): Does the 13th Amendment's Ban on Slavery and Involuntary Servitude Give Congress the Power to Ban Hate Crimes?  Here is the introduction:

A few days ago, Peter Kirsanow and I submitted an Amicus Curiae Brief supporting the Defendant's Petition for Certiorari in Metcalf v. United States. In it, we argue that Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (the "HCPA") is unconstitutional.

For Congress's authority to pass Section 249(a)(1), it purported to rely on the Thirteenth Amendment, which bans slavery and involuntary servitude. Yet it didn't claim that in passing that section its aim was to prevent slavery from returning (and if it had made such claim nobody would have believed it). It's clear that Congress wanted to eliminate hate crimes for the sake of eliminating hate crimes. That is actually a perfectly understandable goal, but it isn't a goal that can be justified by the Thirteenth Amendment.

The amicus brief is posted on SSRN here.  Here is the abstract:

This amicus curiae brief argues that the section of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 that relies on the Thirteenth Amendment for its authorization is unconstitutional. It urges the Supreme Court to grant the Petition for Certiorari. 

Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude--period. Section 2 authorizes Congress to effectuate that ban. Undoubtedly, Section 2 gives Congress broad discretion in its efforts to ban slavery and to prevent its return. But it was not intended as a broad grant of power to remedy all social ills thought to be traceable to, or aggravated by, slavery. Since Congress does not even purport to be motivated by a desire to prevent slavery's return, Section 249(a)(1) is unconstitutional.

Indeed, even if Congress had purported to be motivated by a desire to prevent slavery's return, Section 249(a)(1) is neither congruent and proportional nor rationally related to that aim.

Note that the conduct Petitioner was found to engage in was reprehensible. Amici note only that advocates for the Constitution’s framework of limited government do not always get to choose their allies.

The argument made in this brief applies only to Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The Act also contains a section (Section 249(a)(2)) that is premised on Congress's power under the Commerce Clause. That section is unaffected by this argument.