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. This movement has had its greatest recent success with the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (“HCPA”), which was passed as part of the National Defense Authorization Act for Fiscal Year 2010. Section 4707 of that Act is codified in part at 18 U.S.C. sec. 249(a)(1) and prohibits crimes committed “because of” the race, color, religion, and national origin of some person. In passing that provision, Congress relied on its Thirteenth Amendment power. For crimes committed b3ecause of the race or color of some person, this reliance was exclusive.

Section 1 of the Thirteenth Amendment, however, prohibits slavery and involuntary servitude, not social ills generally. Section 2 confers upon Congress only the power to enforce Section 1’s prohibition. It does not confer on  Congress the authority to take actions that do not have as their ultimate goal the elimination of slavery and involuntary servitude. While prophylactic measures that take aim at the ‘badges and incidents’ of slavery and somewhat overshoot slavery itself may be appropriate in some cases, those measures must be congruent and proportional to the ultimate goal of ending slavery and not designed to achieve some other goal.

When Congress passed Section 249(a)(1), it did not view itself as acting to eliminate slavery or involuntary servitude or as contributing to that goal. Even if it had, Section 249(a)(1) is not a congruent and proportional response to any actual problem of slavery or involuntary servitude today. Section 249(a)(1) is therefore unconstitutional. Until and unless Congress amends the HCPA to rely on its Commerce Clause power for its prohibition on bias crimes based on race or color (and thus to require proof of an interstate commerce nexus) or on another constitutional power, it will be the role of the State of Texas and not the federal government to prosecute accused perpetrators like defendant-appellant. Our Constitution created a Congress of limited and defined powers.

Download the full brief here: III(A)(3)CannonThirteenthAmendment