Hate crimes are abhorrent to all decent persons. But does Congress have the power to tackle this particular problem through federal law?

In enacting the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (“HCPA,”) Congress answered this question in an unusual way. The HCPA provision banning crimes because of the religion, national origin, gender, sexual orientation, gender identity, or disability of some person (not necessarily the victim) requires a connection between the crime and interstate commerce and was enacted pursuant to Congress’s powers under the Commerce Clause. But a separate provision of the Act banning crimes that occur because of the actual or perceived race, color, religion, or national origin of some person (again, not necessarily the victim) was enacted pursuant to Congress’s authority under the Thirteenth Amendment. Section 1 of the Thirteenth Amendment banned slavery and involuntary servitude in the United States. Section 2 gave Congress the power to enforce this ban by “appropriate legislation.”

So how does a constitutional amendment about preventing the return of chattel slavery give Congress the power to enact hate crimes legislation? Isn’t the connection between modern day bias crime and the evils of slavery extremely remote? Isn’t it also true that bias crimes are also unfortunately a widespread phenomenon throughout the world, including in countries that have never had legal systems resembling American slavery? The key to this conundrum lies with a 1968 Supreme Court case, Jones v. Mayer, that held that Congress had the authority to abolish the “badges and incidents of slavery” and furthermore to “rationally determine” what are the badges and incidents of slavery.

Jones’s deferential approach to analyzing Congressional power to enact Thirteenth Amendment legislation contrasts sharply with more recent Supreme Court cases analyzing Congressional powers to enforce the other two Reconstruction Amendments (the Fourteenth and Fifteenth.) All three amendments were enacted close to each other in time and share a “unity of purpose.” The language granting Congress the power to enforce each Amendment is nearly identical. Yet in City of Boerne v. Flores, the Supreme Court has interpreted the Fourteenth Amendment’s enforcement provision as clearly only remedial and ruled that “that [t]here must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  

Lower courts have acknowledged the contrast: in a special concurring opinion in United States v. Cannon, Judge Jennifer Elrod wrote “separately to express my concern that there is a growing tension between the Supreme Court's precedent regarding the scope of Congress's powers under § 2 of the Thirteenth Amendment and the Supreme Court's subsequent decisions regarding the other Reconstruction Amendments and the Commerce Clause.” Similarly, in a Tenth Circuit HCPA case decided before Shelby County, Judge Timothy Tymokovich wrote “’Badges and incidents of slavery,’ taken at face value, puts emphasis solely on the conduct Congress seeks to prohibit, and it seems to place few limits on what that conduct might be. Given slaves' intensely deplorable treatment and slavery's lasting effects, nearly every hurtful thing one human could do to another and nearly every disadvantaged state of being might be analogized to slavery—and thereby labeled a badge or incident of slavery under Jones's rational determination test. In effect, this interpretation gives Congress the power to define the meaning of the Constitution—a rare power indeed.”

More recently, in Shelby County v. Holder, a case involving challenges to the Voting Rights Act of 1965, the Court held that to justify use of the enforcement provision of the Fifteenth Amendment, any legislation must be based on current, not past, conditions. Yet Congress did not present current findings that the HCPA is necessary to enforce the Thirteenth Amendment: as Judge Elrod said in Cannon,  “In passing § 249(a)(1), Congress focused on past conditions and did not make any findings that current state laws, or the individuals charged with enforcing them, were failing to adequately protect victims from racially-motivated crimes.” Further, then Attorney General Eric Holder’s testimony before the Senate Committee on the Judiciary indicates that Congress failed to provide this evidence because it did not exist (see pp. 19-20.)

A petition for en banc review has been filed in the Eighth Circuit in U.S. v.  Metcalf, another HCPA case. Whether the Thirteenth Amendment gives Congress the type of broad power suggested by Jones is an important question ripe for judicial review. The Eighth Circuit should grant the petition. If it does not, Metcalf’s attorneys should petition the Supreme Court for certiorari. Of course decent Americans should recognize the desirability of preventing hate crimes. But so too should decent Americans recognize the desirability of maintaining the constitutional order under which the federal government has limited and enumerated powers.



*For further background about hate crimes and the Thirteenth Amendment, please see this Engage article co-written by Gail Heriot and I, this Federalist Society teleforum with Gail Heriot and Jennifer Mason McAward, and  Gail Heriot and Peter Kirsanow’s amicus brief in the Metcalf case