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Gail Heriot and Peter Kirsanow File Brief in Support of Certiorari in Thirteenth Amendment Case, Cannon v. United States

Today, Gail Heriot and Peter Kirsanow filed an amicus curiae brief in the Supreme Court in support of certiorari in Cannon v. United States, a case that concerns Congressional power to effectuate the Thirteenth Amendment’s ban on slavery and involuntary servitude—and one that cries out for the Supreme Court’s review. Heriot and Kirsanow are both members of the U.S. Commission on Civil Rights, but they filed the brief in their personal capacities and not as Commission representatives.

To summarize:  Judge Jennifer Elrod, who authored the Fifth Circuit opinion below, took the extraordinary step of specially concurring with her own opinion to state, “[W]e would benefit from additional guidance from the Supreme Court on how to harmonize these lines of precedent.”  Judge Elrod’s panel (wrongly in my view) considered itself to be bound by this Court’s decision in Jones v. Alfred H. Mayer & Co., 392 U.S. 409 (1968).  But even if the panel is right, then the Supreme Court should grant the petition to overrule Jones and harmonize the Thirteenth Amendment with the Court’s later case law.

Last year, the Tenth Circuit expressed similar misgivings.Judge Tymkovich, writing for the panel, stated, “[Petitioner’s] arguments raise important federalism questions.”  But he too felt helpless to address them, stating that “in light of Jones it will be up to the Supreme Court” to consider them.

Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude.  Section 2 grants Congress the power to effectuate that ban.  But, contrary to the Fifth Circuit’s reading of Jones, while Congress is given broad prophylactic power to ensure that slavery is indeed banished, never to return, 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 would be extraordinary.  Consider the Nineteenth (women’s suffrage) and Twenty-Sixth (18-year-olds’ suffrage) 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 the failure to enfranchise those groups earlier.  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 case of the Thirteenth Amendment, that would be slavery and involuntary servitude.  Congress’s prophylactic power, although broad, must be focused on that end.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (“HCPA”) was passed in 2009—144 years after the Thirteenth Amendment’s slavery ban.  One section of that act, codified at 18 U.S.C. sec. 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 of the act, not at issue in this case, relies on Congress’s Commerce Clause to prohibit crimes that occur “because of” someone’s religion, national origin, gender, sexual orientation, gender identity and disability, 18 U.S.C. sec. 249(a)(2), and requires proof of an interstate commerce nexus.)

Congress did not even claim that it passed Section 249(a)(1) to effectuate the Thirteenth Amendment’s ban on slavery.  Instead it stated simply that it was attempting to eliminate the “badges, incidents and relics of slavery.” 123 Stat. 2386. 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 had enacted Section 249(a)(1) in order 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 Thirteenth Amendment’s ban on slavery, the proper standard to apply 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 American criminal justice system, especially in the form of double jeopardy concerns.  In situations in which there is a real federal interest at stake, these costs may be tolerable—but not when no real federal interest is at issue.

Even if the “rationality standard” of Jones v. Alfred H. Mayer Co. & Co., 392 U.S. 409 (1968), and 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 Fifth Circuit erred in concluding that Jones 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 concerned with a Reconstruction Era statute, which it interpreted to ban private discrimination in the sale of real estate.  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 the members of Congress 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.

Here is a link to a PDF of the entire brief: SominHeriotCannonBriefToFile



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