New American Civil Rights Project

At FrontPage magazine, Ian Smith notes that “The events in Ferguson, Missouri this past week have triggered calls for President Obama to push for an anti-race profiling-bill to prevent police from “disproportionately targeting ethnic minorities for investigation, interrogation and arrest” – Obama has helped pass such legislation when he was a state senator –Senator Ben Cardin (D-Md.) has urged Congress to introduce legislation that would ‘once and for all prohibit racial profiling by law enforcement officials.’

In spite of ‘racial profiling’ more naturally being a state matter (insofar that it’s regulatable), such a power grab by the federal government is entirely possible due to the gradual expansion of the Thirteenth Amendment’s ban on slavery. Although relatively dormant during the first 100 years of its passage, the Thirteenth Amendment’s Section 2 enforcement power, which authorizes Congress to enact “appropriate legislation” to end the “badges and incidents of slavery,” has dramatically widened since the 1960s and could ‘justify’ such a bill.”

A few thoughts: although Smith is correct to note that policies regulating police activity usually are state and local matters, the Equal Protection Clause of the Fourteenth Amendment does come into play here because racial profiling involves classifications on the basis of race. State and local police nonetheless can constitutionally use such racial classifications if they are justified by a compelling governmental interest and the policy is  narrowly tailored to serve that interest. Although national security in wartime  has long been recognized as a compelling interest in this context, it is somewhat less obvious from the case law that keeping domestic law and order in peacetime would also so qualify. Nonetheless, because government has few interests more compelling than protecting the physical security of the governed, I am inclined to think that the police’s interest in keeping order would likely be considered compelling. Of course, the narrow tailoring portion of the test has also been interpreted as representing a high bar for the government to clear and is important here too: are there other public policies that don’t use racial classifications that would permit the police to protect the physical safety of law-abiding persons as well as racial profiling does? The answer to that question will necessarily be highly fact-specific. In any case, it’s far from clear to me that racial profiling as it is often alleged to operate in the real world generally passes strict scrutiny — and for related thoughts, I also refer readers to law professor Nelson Lund’s The Conservative Case Against Racial Profiling published in the Albany Law Review.

But if Congress thinks that Equal Protection lawsuits as described above are insufficient to stop police departments’ use of racial profiling, what powers might it have to correct the problem? Per the Spending Clause, Congress could stop giving federal funds to state and local police departments that use racial profiling. But some police departments might simply choose to forego this funding, meaning that Congress might turn to using its other powers. Indeed, Section 5 of the Fourteenth Amendment gives Congress the power to “enforce, by appropriate legislation” its provision relating to equal protection. But, as Smith notes and as Heriot and Kirsanow note in their amicus brief, courts use a relatively stringent test — the “congruence and proportionality standard” of City of Boerne v. Flores — to assess the constitutionality of Fourteenth Amendment legislation. Or, in essence, if Congress can’t amass a sufficient evidentiary record documenting that racial profiling by police is undermining equal protection, then legislation to stop is unconstitutional.

The Thirteenth Amendment contains a very similar provision permitting Congress to enforce its ban on slavery and involuntary servitude. Yet, as is discussed in Smith’s article and in the Heriot-Kirsanow brief, the “rational basis” test that has been used to assess the constitutionality of Thirteenth Amendment legislation has been interpreted as much more deferential to Congress. It is therefore entirely possible, under current doctrine, that Congress has the power to promulgate the End Racial Profiling Act pursuant to its Thirteenth Amendment powers but not per its Fourteenth Amendment powers.

This is a strange result. Not even the most vociferous critics of racial profiling think that it is actually leading to a resurgence of antebellum slavery. On the other hand, as I have discussed above, there is a real argument that racial profiling will sometimes violate the Fourteenth Amendment. Indeed, commentators often point out that racial profiling unjustly harms Hispanics, an ethnic group that was never enslaved in the United States. This inconsistency illustrates once again the need for a consistent test for review of the constitutionality of legislation passed pursuant to Congress’s powers to enforce all three of the Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth alike.)

Today, the Cato Institute (joined by the Reason Foundation and the Individual Rights Foundation) has asked the Supreme Court to grant certiorari in Cannon v. United States, drawing special attention in their brief to the double jeopardy concerns that hate crimes prosecutions raise in what are frequently emotionally highly charged  cases. To quote from Cato attorney Ilya Shapiro’s blog post:

In petitioning the Supreme Court for review, Cannon argues that the HCPA intrudes on the states’ police power to prosecute local crimes and that Congress can’t be the judge of the limits of its own powers, whether under the Thirteenth Amendment or otherwise. Joined by the Reason Foundation and the Individual Rights Foundation, Cato has filed a brief supporting Cannon’s petition. We argue that the use of hate-crime laws to sweep local criminal activity into federal court has nothing to do with stamping out slavery and that the Court should decide the legitimacy of these laws before a more highly politicized case comes along—Ferguson, anyone?—and makes that task even harder.

Not only are federal hate crime laws constitutionally unsound, but, as George Zimmerman’s trial over the death of Trayvon Martin highlighted, they invite people dissatisfied with a state court outcome to demand that the federal government retry unpopular defendants. Giving Congress unlimited power and impairing the fundamental right to be free from double prosecution are too high and too immediate a price to pay to combat the phantom menace of slavery’s return to the United States.

For more about Cannon v. United States, please see this brief by U.S. Commission on Civil Rights members Gail Heriot and Peter Kirsanow (writing in their individual capacities as citizens and not as Commission representatives) and this blog post summarizing the case and the Heriot/Kirsanow brief.

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

Today, Gail Heriot and Peter Kirsanow, two members of the U.S. Commission on Civil Rights who are writing in their individual capacities as Commissioners and not on behalf of the Commission as a whole, sent the below letter to Attorney General Holder about recent events in Ferguson, Missouri (a link to the PDF is also available on the Letters tab of this webpage):

HeriotKirsanowLettertoDOJonFerguson

Heriot and Kirsanow write, “We are writing today as two members of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. Our colleagues on the Commission recently sent you a letter expressing their deep concern over the recent and continuing events in Ferguson, Missouri. We share our colleagues’ overall sense of concern and also wish to urge the Department to take thoughtful and thorough measures to protect the civil rights of Ferguson’s residents. We write today to add a few words of our own to our fellow Commissioners’ thoughts.

We understand that the Department has opened an investigation into the police shooting death of Michael Brown, an African-American man who witnesses say was unarmed. Police officers perform a dangerous job and face many threats. We commend police departments across the country for all that they do to keep all of us safe. Furthermore, as President Barack Obama recently suggested, there is never any excuse for violence against police or for those who would use a young man’s tragic death as an excuse for vandalism or looting.  At the same time, men and women in blue sometimes misuse their power, and it is important to hold them accountable when they do. We therefore strongly support your Department’s inquiry into the circumstances of this troubling case.

In addition, we too are concerned about reports of potential violations of individual rights and liberties over the past few days, including those raised by news stories about police disruption of peaceful protests and about the arrests of journalists. The First Amendment rights of assembly and of the press are cornerstones of the American system of liberal democracy. Both as members of the Commission and as private citizens, we take allegations that they have been violated with the utmost seriousness. Consequently, we strongly urge that the Department and the local U.S. Attorney’s office take the steps necessary to protect the constitutional rights of the citizens of Ferguson.”

Here is a copy of the letter sent earlier by six other members of the Commission, referenced in the Heriot-Kirsanow letter above.

Given the subject matter of this website, I’ve been trying to read all that I can about the recent events in Ferguson, Missouri. The facts of what exactly happened — both regarding the tragic death of a young man and its aftermath — are still emerging. (For example, I recently came across this Legal Insurrection blog post questioning earlier factual accounts of Michael Brown’s death.)

Police officers do an important job. I appreciate all that they do to keep my loved ones, friends, and me safe. But they also face tough judgment calls about how to respond to particular situations — sometimes in the blink of an eye. But  some also misuse their power, and they should be held responsible when they do. This case presents serious and troubling questions about police use of force — both regarding Brown’s death and at protests afterwards. Also of serious concern to me are news reports alleging use of tear gas at protests and about arrests of citizens for protesting peacefully and of journalists.

One policy question to be taken seriously in the wake of this particular tragedy: does the unfolding of events in Ferguson illustrate a broader problems with the increasing militarization of police?As Senator Rand Paul wrote in Time magazine: ” The outrage in Ferguson is understandable—though there is never an excuse for rioting or looting. There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response. The images and scenes we continue to see in Ferguson resemble war more than traditional police action.”

Or, as Kevin Williamson of National Review colorfully put it: “The behavior of the Ferguson and St. Louis County police in this matter is illuminating. They are ridiculously militarized suburban police dressed up like characters from Starship Troopers and pointing rifles at people from atop armored vehicles, i.e. the worst sort of mall ninjas. They are arresting people for making videos of them at work in public places, which people are legally entitled to do, a habit they share with many other police departments. Protecting life, liberty, and property — which is the job of the police — does not require scooping people up for making phone videos; in fact, it requires not scooping people up for making phone videos.”

The federal Leviathan has played a crucial role in funding such quasi-military police programs throughout the country. As Walter Olson notes at Cato at Liberty, “Federal grants drive police militarization. In 2012, as I was able to establish in moments through an online search, St. Louis County (of which Ferguson is a part) got a Bearcat armored vehicle and other goodies this way. The practice can serve to dispose of military surplus (though I’m told the Bearcat is not military surplus, but typically purchased new) and it sometimes wins the gratitude of local governments, even if they are too strapped for cash to afford more ordinary civic supplies.”

Finally, I found valuable and worth reading John McWhorter’s reflections on Ferguson, race, and the War on Drugs.

John McWhorter has an interesting essay defending the practice of “cultural appropriation.” Here is a short excerpt sketching out his thesis:

… the concept of cultural appropriation has morphed into a parody of the original idea. We are now to get angry simply when whites happily imitate something that minorities do. We now use the word steal in an abstract sense, separated from any kind of material value.

It used to be that we said that imitation is the sincerest form of flattery. But now there is new way to see the matter: Imitation is a kind of dismissal.

But does this idea hold up? I doubt it. If one is seen, and seen in an approving light, one will be imitated. This is what human beings do. The very faculty of language is, to a large extent, a matter of imitation. The idea that when we imitate something we are seeking to replace it rather than join it is weak. Think about it: Does that even make sense? It’s certainly up for debate.

Yet some will insist that we squeeze ourselves into the mental straitjacket and allow this as a “progressive” new take on what it is to be a human in a diverse society. But it won’t work. What’s the evidence? All of human history.

The grand old empires (including the ones in Africa) were all about rampant interethnic appropriation. Every language in the world is shot through with words and grammatical patterns from other languages—that is, signs of people in the past doing what we would call “appropriating.”