The Fifth Circuit ruling was primarily based on the Supreme Court’s ruling in Jones v. Alfred Mayer Co. (1968), which concluded that the Thirteenth Amendment gives Congress the power to ban all “badges and incidents” of slavery as well as slavery itself. Far more dubiously, it also interpreted the power to ban “badges and incidents” to include the power to forbid anything that Congress determines might be “rationally related” to those badges and incidents. By that standard, the court concluded that the federal hate crimes act must be upheld, as did a similar decision by the Tenth Circuit last year. But the Fifth Circuit ruling also quotes language in the Tenth Circuit opinion that explains why Jones’ reasoning is deeply problematic:
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.
Whatever else it might do, the power to ban slavery and involuntary servitude cannot reasonably be interpreted as a blank check for nearly unlimited federal power. Today’s Fifth Circuit opinion includes a good discussion of how the concept of “badges and incidents” of slavery was originally understood far more narrowly and reasonably than in Jones.
In addition, as the Fifth Circuit explains at some length in today’s opinion, the Jones test is at odds with recent Supreme Court opinions interpreting virtually identical provisions of the Fourteenth and Fifteenth amendments, which, like Section 2 of the Thirteenth Amendment, give Congress the power to enact “appropriate” enforcement legislation. For example, City of Boerne v. Flores (1997) interpreted Section 5 of the Fourteenth Amendment as giving Congress the power to enact only “congruent and proportional” enforcement laws.
The racially motivated violent crimes at issue in both the Fifth and Tenth Circuit cases were despicable and clearly deserve substantial punishment. At the same time, state officials were ready, willing, and able to prosecute the suspects in both cases. Neither could reasonably be interpreted as part of any trend that has even a small probability of bringing back slavery or involuntary servitude. These cases are also very different from the situation that prevailed in many states up to the 1960s, where state authorities were often unwilling to prosecute racist violence perpetrated by whites against minorities, and sometimes even perpetrated or abetted such violence themselves. In that situation, federal intervention was justified under the Equal Protection Clause of the Fourteenth Amendment, which, combined with Section 5, gives Congress the power to intervene to forestall state denials of equal protection of the law on the basis of race. Today, there are very few parts of the country where local prosecutors are unwilling to go after racist violence just as aggressively as other violent crimes. The notorious James Byrd case, which played a key role in inspiring the federal Shepherd-Byrd hate crimes law, actually illustrates this point well. Two of the three perpetrators of that murder were sentenced to death by Texas state courts, and the third got a sentence of life imprisonment.
Hopefully, the Supreme Court will take up this issue in the near future, and bring Thirteenth Amendment jurisprudence in line with its interpretation of the two other Reconstruction Amendments. It may be possible to interpret Jones more narrowly than the conventional wisdom endorsed in the recent Fifth and Tenth Circuit decisions. But if the dominant interpretation of Jones is correct, the time has come for the Court to reject it.
I previously considered the pitfalls of overbroad interpretations of the Thirteenth Amendment in this post. Legal scholar Gail Heriot and my wife, Alison Somin, have coauthored this very helpful short article on the subject. Alison also authored an amicus brief in the case on behalf of Prof. Heriot and two other members of the US Commission on Civil Rights.
UPDATE: For an excellent discussion of the original understanding of the scope of Congress’ power to ban “badges and incidents” of slavery, see this article by Notre Dame law professor Jennifer Mason McAward.
UPDATE #2: In the original version of this post, I forgot to include a link to the Fifth Circuit decision. That error has now been corrected.
UPDATE #3: In a special concurring opinion to her own opinion for the unanimous Fifth Circuit panel, Judge Jennifer Walker Elrod noted “a growing tension between the Supreme Court’s precedent regarding the scope of Congress’s powers under sec. 2 of the Thirteenth Amendment and the Supreme Court’s subsequent decisions regarding the other Reconstruction Amendments and the Commerce Clause” and suggested that it “would benefit from additional guidance from the Supreme Court on how to harmonize these lines of precedent.”