Sunday, July 29, 2018
Does the 13th Amendment's Ban on Slavery and Involuntary Servitude Give Congress the Power to Ban Hate Crimes? - Volokh Conspiracy : Reason.com
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.
By my distinguished colleague Gail Heriot.