Does the 13th Amendment's Ban on Slavery and Involuntary Servitude Give Congress the Power to Ban Hate Crimes?

Metcalf v. United States gives the Supreme Court the opportunity to decide.


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.

To give you a taste of our argument, here is selection from the Brief's Summary of the Argument:

Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude—period. Section 2 grants Congress the power to effectuate that ban. But while Congress is given broad prophylactic power to ensure that slavery is indeed banished, it is not given the additional independent power to uproot the badges, incidents, and relics of slavery untethered to the goal of banning slavery itself.

The ramifications of the contrary view are extraordinary. Consider the Nineteenth and Twenty-Sixth Amendments. Since they contain essentially identical grants of power to Congress, they would have to be interpreted to allow Congress to uproot historical relics of women's and 18-year-olds' past disfranchisement. It is safe to say that the power to remake the country as Congress thinks it "would have been" is virtually an unlimited power.

A more reasonable interpretation of these amendments is that they ban exactly what they say they ban. In the Thirteenth Amendment's case, that would be slavery and involuntary servitude. Congress's prophylactic power, although broad, must be focused on that end.

The [HCPA] was passed in 2009—144 years after the Thirteenth Amendment's enactment. One section of that act, codified at 18 U.S.C. § 249(a)(1), nevertheless relies on Congress's Section 2 power as authority for the creation of criminal penalties for crimes committed "because of the actual or perceived race, color, religion, or national origin of any person." (A different section, not at issue in this case, relies on the Commerce Clause to prohibit crimes occurring "because of" someone's religion, national origin, gender, sexual orientation, gender identity and disability, 18 U.S.C. § 249(a)(2), and requires proof of an interstate commerce nexus.)

Congress did not claim that it passed Section 249(a)(1) to effectuate the Thirteenth Amendment's ban on slavery. Instead it stated that it was attempting to eliminate the "badges, incidents and relics of slavery." The provision is thus unconstitutional. See McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (stating that Congress is due deference on the means by which it accomplishes legitimate ends, but not the ends themselves).

Even if Congress had claimed that it enacted Section 249(a)(1) to prevent slavery's return, the provision would still be unconstitutional. When Congress makes a dubious claim that it is motivated by a desire to effectuate the Constitution's ban on slavery, the applicable standard is the "congruence and proportionality" test of City of Boerne v. Flores, 521 U.S. 507 (1997). Such a standard sidesteps the need for the Court to directly address the issue of Congress's sincerity and instead applies an objective test of whether Congress's solution fits the problem it purports to address.

Section 249(a)(1) is in no way "congruent and proportional" to the problem of slavery. No one claims that slavery could return without Section 249(a)(1). Instead, it is clear that Congress is motivated by the desire to rid the nation of bias crimes—a perfectly understandable goal, but not a federal goal. In doing so, however, it imposes substantial costs on the criminal justice system, including double jeopardy concerns. When there is a real federal interest at stake, these costs may be tolerable—but not when there is not.

Even if the "rationality standard" of … Shelby County v. Holder, 133 S. Ct. 2612 (2013), applies instead, Section 249(a)(1) would be unconstitutional. As Shelby County makes clear, such a standard requires that current burdens be justified by current needs. The threat of slavery today is a mere phantom; the threat of double prosecutions in emotionally-charged cases is all too real.

The Eighth Circuit erred in concluding that Jones [v. Alfred Mayer Co., 392 U.S. 409 (1968)],is an obstacle to holding Section 249(a)(1) unconstitutional. Jones need not be overruled in order to conclude that Congress overreached in passing Section 249(a)(1). Jones was about a Reconstruction Era statute, which it interpreted to ban private discrimination in real estate sales. Whatever that statute's correct interpretation, there is no doubt that eliminating slavery and preventing its return was the first, second, and third thing on the minds of those who enacted it in 1866. That is in stark contrast to the HCPA more than a century later.

Section 249(a)(1) is unlikely to be the only statute of the near future premised on an expansive reading of Section 2. There has been a growing movement in both academia and Congress to use the Thirteenth Amendment to address a variety of social ills thought to be in some way traceable to, or aggravated by, slavery—ranging from payday lending to race-selective abortion to "hate speech." Granting certiorari in this case obviates the need for multiple constitutional challenges in the future. An ounce of Constitutional prevention is worth a pound of cure.

The Supreme Court doesn't grant many petitions (and it has rejected a petition based on a similar argument before). On the other hand, as discussed in the brief, two Courts of Appeal have made it clear that they could use more guidance on this issue. So we'll see ….

NEXT: More on Suits against Unions for Janus Violations

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  1. “It is safe to say that the power to remake the country as Congress thinks it “would have been” is virtually an unlimited power.”

    Woo-hoo! Let’s get started! /Congress

    1. If nothing else, it shows how instantaneously Congress would start outlawing speech directly if it could. In short order you’re like other countries with gaping holes for “respecting dignity” and “we need to filter the news to protect sensibilities and civility”.

  2. The HCPA purports to ban “hate speech” based on actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability, as well as race or color. Even if we assume that slavery is synonymous with a specific race or color, how does the Thirteenth Amendment and slavery possibly apply to the other categories?

    1. I assume the pretext, (Because this IS just all pretextual.) is that Congress is staving off the eventual imposition of slavery based on “X” category. If we don’t prohibit hate speech against the transgendered, eventually people who are confused about their gender will be routinely enslaved…

      I always assumed that “badges and incidents of slavery” had to do with prohibiting requiring ex-slaves to wear special marks or clothing, or subjecting them to special restrictions aimed at recreating slavery. And a (very quick) literature search confirms this.

      At this point Congress is really phoning in the excuses for power grabs. They don’t even try to be plausible about it anymore.

      1. The term “badges and incidents” is not limited to some sort of “special marks or clothing” though that could be an example. The “special restrictions aimed at recreating slavery” is more broad, but merely “recreating slavery” is not the same thing as something that is a “badge” or “incident” of slavery. It isn’t slavery itself.

        And, the 13th Amendment specifically gives Congress power to enforce and this was long held to be an open-ended power to do do based on its judgment. Jones v. Mayer Co. cites original understanding on this point, for those who care about such a thing. The Civil Rights Cases (1883) is also quoted: “burdens and disabilities” – included restraints upon “those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.” A limit on leasing property is not “recreating slavery” in literal form.

        Race based hate crime, violence merely based on the color of one’s skin, is quite “plausible” in connection to this. As Supreme Court has held, original understanding also was that there was a “Jewish” and likely a “Muslim” race. So, by religion makes sense here too.

        1. “gender, sexual orientation, gender identity, or disability” would be a further step, including violence against people who the ATTACKERS “are confused” about in some sense.

          But, the 13A doesn’t only protect black people (as the person who thinks forcing people to serve them has readily agreed) and the 13A gives Congress (quoting Jones) the power to stop the “burdens and disabilities” – included restraints upon “those fundamental rights which are the essence of civil freedom.”

          Being free from violence would seem to be of that character. The federal hate crimes law does various things like providing assistance to state criminal investigations so in various ways can be seen as “congruent and proportional.” The outer limits would be a purely state crime in a non-racial situation where there is clear evidence the state make a serious attempt to protect the individuals.

          I think a serious concern can be cited as applied to a federal prosecution in that situation though it very well largely might be a political judgment.

          1. “Being free from violence would seem to be of that character.”

            Doesn’t that justification give Congress a plenary police power over everyone in the United States?

  3. It would seem to me that even if the 13th Amendment banned the “badges and incidences of slavery,” as the Court has previously suggested, and even if we interpreted that phrase quite broadly, it would still only apply to groups that had previously been subjected to slavery, regarding whom vestiges of hate and discrimination could be deemed a badge or incidence of slavery. That could give Congress the authority to ban hate crimes against African Americans under the 13th Amendment, but no one else.

    1. If the Thirteenth Amendment was truly intended by its Drafters to be that broad, why was it necessary to enact the Fourteenth Amendment, which was a reaction to the so-called Slave Codes the former states of the Confederacy were enacting to reduce the newly-freed slaves to as close to a condition of slavery as possible by, among other measures, denying them every possible area of employment or source of income other than low-paid manual agricultural labor? Indeed, why would the Fifteenth Amendment have been necessary, since denying the newly-freed slaves the right to vote could clearly have been seen as a badge and incident of slavery? Doesn’t this suggest that the Drafters of the Thirteenth Amendment did not intend or understand it to have such a broad scope?

      1. The 14A has various components but part of its purpose was to in a more clear way clarify the breadth of congressional power, some moderates like John Bingham in particular concerned.

        But, the variety of rights protected by the 14A (including perhaps the full Bill of Rights) and some somewhat broad reach of the 13A to cover the Civil Rights Act of 1866 at least not overlapping totally is pretty possible. Something as broad as voting rights of all blacks not being covered but something like discrimination in labor contracts (free labor a direct concern of the 13A) especially is quite possible.

        There is some middle ground here. Anyway, original intent and understanding vs. looking at the text is not the only way to apply the 13A.

    2. Well, no one else but American Indians, who were also subjected to slavery. Could there also be an implication on behalf of women, given the treatment afforded enslaved women? Lest you answer, “But that was because they were black, and not because they were women . . . ,” stop and think.

      So, Professor Bernstein, what do you think about doing that, and interpreting “that phrase quite broadly?”

    3. Early case law (cited by Wiki) also referenced Chinese and Mexican laborers. And we had the Japanese internment.

      So, I agree that hate crimes would have to be tied to slavery or servitude in some way, but I doubt it would be difficult to make that connection. At least for racial groups. Maybe not for cultural/lifestyle ones.

      1. In some cases it wouldn’t be hard to make the connection, in most cases it would be really difficult.

      2. Early understanding — cited by 1980s Supreme Court cases — also covers at least some religious groups.

        A libertarian blog seems a somewhat curious place for us to provide a narrow understanding as to what “slavery” and “involuntary servitude” entails. There were various comments by the “founders” here about using the 13A as an open-ended protection of freedom.

        A narrower more conservative approach is surely reasonable.

      3. Chinese laborers were often falsely portrayed as being indentured “Coolies”. This was false.

    4. David, I don’t understand. Are you saying that enslavement of people other than African Americans is OK under the 13th Amendment?

      1. No, he’s saying that previous cases that broadly interpreted the 13th Amendment to include the “badges and incidences of slavery” would only apply to African Americans, but the literal prohibition of slavery in the 13th Amendment would apply to anyone.

  4. WTF on the ratification of the 13th Amendment

    Delaware ? February 12, 1901 (after rejection ? February 8, 1865)
    Kentucky ? March 18, 1976[79] (after rejection ? February 24, 1865)
    Mississippi ? March 16, 1995; Certified ? February 7, 2013[80] (after rejection ? December 5, 1865)

    1. Once you have enough states ratify an amendment, the other states doing it is just political theater.

      1. Yeah, but Bubba is pointing out that those states specifically rejected the 13th Amendment. It’s not a situation where the States just never got around to actually voting on it.

        1. Sure, but you’re not surprised they didn’t vote for it in 1865, are you? Those three states didn’t abolish slavery on their own, the 13th forced them to. So when would it have been natural for them to do so?

          Never, really. It would have taken someone saying “hey, you know what we never got around to?” a number of years later, and someone who managed to get enough attention to actually get it voted on.

          OTOH, 1976 and 1995, really?

          1. Careless: “OTOH, 1976 and 1995, really?”

            Ahh — South Carolina didn’t actually remove anti-miscegenation language from its constitution until 1998, by a referendum (I was there to vote and witness it), and the vote wasn’t a runaway.

            1. That’s still a hot button issue with some people. Particularly black women

    2. All three were slave states. I’m most surprised about Mississippi since I thought ratification was a condition of rejoining the Union.

  5. A waste of time. As the article points out, 249 also prohibits hate crimes committed with weapons that have ever touched interstate commerce. Until the court is willing to rein that in (which would require finding 2/3rds of the U.S. Code unconstitutional), this is a fruitless exercise.

    1. What about hate crimes committed without any weapons?

      1. The 13th Amendment based statute requires a weapon too.

  6. Section 249(a)(1) only applies to crimes motivated by race, color, religion or national origin. Not sex or sexual orientation. Insofar as race and color are concerned, isn’t this question of Congressional power settled by Griffin v. Breckenridge, 403 U.S. 88 (1971)? Wouldn’t a litigant have to ask for that case to be overruled?

  7. I agree with the opinion that “A more reasonable interpretation of these amendments is that they ban exactly what they say they ban. In the Thirteenth Amendment’s case, that would be slavery and involuntary servitude. Congress’s prophylactic power, although broad, must be focused on that end.” In fact, I’d go one step further and say that the Thirteenth Amendment bans only slavery and involuntary servitude having a character identical to African slavery/servitude.

    “Utilizing the language of the Ordinance of 1787, the Thirteenth Amendment declares that neither slavery nor involuntary servitude shall exist. This amendment was adopted with reference to conditions existing since the foundation of our government, and the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.” [240 US 328 (1916) at 332-333]

  8. Period? What about that next part? The one that says “except as a punishment for crime whereof the party shall have been duly convicted?”

  9. Assuming that the 13 Amendment does not give authority to this law (a safe assumption), what, if any, alternate sources of power can the government claim to save the law?

    1. I think you could make a credible argument that the 14th Amendment allows Congress to criminalize racially based assaults in areas where the states are not enforcing the law.

      1. Very credible, but that doesn’t get you to hate speech restrictions.

  10. Under the rationale by the government, Congress could prohibit states from enacting their own gun control laws.

  11. No. Hateful wackos have a First Amendment right to argue that the Thirteenth Amendment doesn’t really prohibit slavery, or if it does, then it should be ignored and most or all blacks reduced to being human chattels anyway for the sake of Great Social Justice.

    Just like hateful wackos have a First Amendment right to argue that the Second Amendment doesn’t really prohibit gun control, or if it does, then it should be ignored and private ownership of guns strictly limited or outright banned for the sake of Great Social Justice.

  12. The 14th Amendment’s right to life doesn’t apply to alien enemy military invaders, who can be killed in combat without process. But the 13th Amendment at least arguably does. If captured they can be kept prisoner, but they can’t be put to work, as it’s no crime to be a soldier. The idea that the 13th amendment applies in situations where the 14th doesn’t is straightforward. Between the passage of the 13th and 14th amendments, slaves were freed, but they remained beings of an inferior order and could continue to be regarded as altogether unfit to associate with the white main, barred from becoming citizens and lacking other rights.

    Thus a case could be made that the 13th Amendment applies to fetuses. Roe v. Wade didn’t decide thiis. The 13th Amendment never uses the word “person.” And it was specifically intended to apply to a group of beings who were regarded as human but human in an inferior way, not persons in the full sense of the word. The position of slaves between the 13th and 14th amendments makes sense, and has some basis for analogy, as applied to fetuses.

    But perhaps the position of enemy combatants is the best analogy here as to how this would work. You can kill them outright. You can put them in prison. But you can’t make them work, perform medical experiments on them not for their benefit, and a variety of other things.

    1. “The 14th Amendment’s right to life doesn’t apply to alien enemy military invaders, who can be killed in combat without process.”

      I think you are overestimating both the right to life and the requirements of due process. Even a citizen can be killed by a police officer (the government) in appropriate circumstances without requiring any particular procedural requirements.

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