ACSBlog: The Blog of the American Constitution Society

Recently, the Bush Administration released a statement arguing that a bill to expand federal hate crimes protections to crimes motivated by gender, sexual orientation or disability based bias "raises constitutional concerns."  A recent letter signed by several law professors contests this conclusion:

Dear Senators:

In its Statement of Administration Policy (“SAP”) on H.R. 1592, The Local Law Enforcement Hate Crimes Prevention Act of 2007, the Administration raises constitutional concerns challenging the authority of Congress to enact one subsection of the proposed legislation. We write to express our view that this provision is clearly within the power that the Constitution grants to Congress. Moreover, we believe that the proposal comports with the Constitution’s structural precepts, including the principles of federalism that allocate power between the national government and the states.

 The SAP questions only the validity of the provision that proposes to add a new § 249(a) to title 18 of the United States Code. Section 249(a) would prohibit violent crimes motivated by the race, color, religion, or national origin of the victim.  In contrast to § 249(a), § 249(b) would prohibit violent crimes motivated by religion, national origin, gender, sexual orientation, gender identity or disability, but only if the crime were committed with some connection to interstate commerce, such as during interstate travel or in a way that affects interstate commerce. Section 249(b) is thus limited to circumstances clearly falling within Congress’s power to regulate interstate commerce.[1] U.S. Const. art. I, sec. 8, cl. 3. While the SAP does not challenge the validity of § 249(b), we are aware of some public commentary that questions the validity of extending federal statutory protection to gay, lesbian, bisexual and transgendered persons. These attacks are not well-founded. Section 249(b) extends protection only in instances that are within the recognized categories of congressional power under the Commerce Clause. Because § 249(a) is not similarly limited to effects on interstate commerce, its text, standing alone, does not expressly invoke one of Congress’s enumerated powers. The Administration’s constitutional concern apparently stems from the unqualified nature of §249(a).

It is axiomatic that Congress’s power, and that of the federal government as a whole, is limited and enumerated. See, e.g., M’Culloch v. Maryland, 17 U.S. 316 (1819); Gibbons v. Ogden, 22 U.S. 1 (1824); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Boerne v. Flores, 521 U.S. 507 (1997). In the case of § 249(a), the Thirteenth Amendment authorizes Congress to enact the provision. When the Justice Department commented on a similar version of this provision, it agreed with this conclusion. See Letter for Senator Edward M. Kennedy, from Robert Raben, Assistant Attorney General, Office of Legislative Affairs (June 13, 2000), reprinted in Report of the Committee on the Judiciary, United States Senate, on The Local Law Enforcement Enhancement Act of 2001, at 16-18 (107^th Cong., 2d. sess.)(“DOJ Letter”).

The Thirteenth Amendment provides: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” In contrast to those provisions of the Fourteenth Amendment directed at “state action,” this constitutional provision was designed to reach private conduct. The Amendment sets forth an essential postulate of liberty: no person should exercise that kind of degrading control and domination over another person that was characteristic of slavery or involuntary servitude, including the use of physical violence.[2] The Supreme Court has explained that the Thirteenth Amendment grants Congress a broad power to effectuate this postulate. In doing so, Congress has authority to go well beyond merely prohibiting slavery; it may also eliminate the “incidents” of slavery. Moreover, the Court substantially defers to Congress’s judgments in this area. “Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation.” Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). 

Based on this understanding of congressional power under the Thirteenth Amendment, the Supreme Court has upheld a variety of protections that go well beyond a specific prohibition of slavery. For example, the Court relied on the Thirteenth Amendment to uphold a federal law that prohibits a private owner of real property from engaging in racial discrimination in the sale or rental of the property. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)(upholding 42 U.S.C. § 1982). The Court extended that reasoning to uphold a federal law forbidding racial discrimination in the making of private employment contracts and providing a federal cause of action to enforce the prohibition. See Johnson v. Railway Express Agency, 421 U.S. 454 (1975) (upholding 42 U.S.C. § 1981). The Court also held that the Thirteenth Amendment authorizes Congress to prohibit private schools from making racially discriminatory admissions decisions. See Runyon v. McCrary, 427 U.S. 160 (1976).[3]   The Court has further held that the Thirteenth Amendment vests Congress with broad criminal law authority. As the Court explained in Griffin v. Breckenridge, 403 U.S. 88, 105 (1971), “the varieties of private conduct that [Congress] may make criminally punishable or civilly remediable [under the Thirteenth Amendment] extend far beyond the actual imposition of slavery or involuntary servitude.” In that case, the Court upheld a federal criminal conviction for an assault against a group of African-Americans whom the assailants believed had traveled to Mississippi to participate in civil rights advocacy. 

The lower federal courts have followed and applied this line of cases in numerous decisions. One recent case bears particular attention. In United States v. Nelson, 277 F.3d 164 (2d Cir. 2002), the Second Circuit upheld Congress’s authority to make it a federal crime to engage in a racially motivated assault when the victim was participating in or enjoying a facility provided or administered by a state. In upholding the law’s validity and application in that case, the court emphasized that the federal law did not seek to “create a general, undifferentiated federal law of criminal assault.” Id. at 185.

Congress has clear authority to enact the Local Law Enforcement Hate Crimes Prevention Act of 2007 under these precedents. To be sure, this legislation would extend the existing federal statutory proscription of hate crimes to forbid all crimes of violence motivated by animus toward one of the classes set forth in section 249(a), and thereby eliminate the existing prohibition’s requirement that the violence have been designed to prevent the victim from utilizing a state facility or exercising a state right. The bill, as introduced in the House of Representatives, sets forth the basis of Congress’s authority. As the bill’s findings explain, “For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.” H.R. 1592, § 2(7), as reported March 20, 2007. Consistent with that view, Judge Guido Calabresi observed in Nelson, the “practice of race-based private violence both continued beyond the demise of the institution of chattel slavery and was closely connected to the prevention of former slaves’ exercise of their newly obtained civil and other rights (rights that slavery had previously denied them), thereby presenting ‘a spectacle of slavery unwilling to die.’” Id. at 190 (quoting Jones, 392 U.S. at 445 (Douglas, J., concurring)). The legislation, moreover, would not create a general, undifferentiated federal law of criminal assault. Rather, it would apply only to the sort of violence that Congress could reasonably determine remains an incident and relic of slavery: racially motivated violence.[4] 

Section 249(a) would also apply to crimes of violence motivated by religion or national origin. In light of the findings proposed by § 2(8) of the bill as reported in the House of Representatives, see H.R. 1592 (March 20, 2007), we understand those categories to refer to only those religions or national origins that would have been understood as races at the time the Thirteenth Amendment was enacted. That § 249(b) – with its jurisdictional commerce element – also refers to crimes motivated by religion or national origin supports the view that § 249(a) should be construed to apply to only a subset of religions and national origins. In interpreting the scope of the Thirteenth Amendment, the Supreme Court has held that it authorizes congressional legislation protecting persons of religions and national origins understood to be races when the Thirteenth Amendment was adopted. See Saint Francis College v. Al-Khazraii, 481 U.S. 604, 613 (1987)(finding congressional authority to protect Arabs); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987)(authority to protect Jews).

Oddly, the SAP never discusses the Thirteenth Amendment at all, limiting its analysis of potential sources of congressional authority for H.R. 1592, and the bicameral, companion legislation in the Senate, S. 1105, to the power to protect federal personnel, to regulate interstate commerce, and to enforce equal protection of the laws. Given the Justice Department’s public position that the Thirteenth Amendment authorized a prior version of the proposed legislation, the SAP’s omission   is particularly surprising.  

This legislation, wholly within Congress' authority under the Thirteenth Amendment, is also quite sensitive to the legitimate interests of the states within the constitutional structure of federalism. While the Court has indicated in recent cases that legislation providing federal remedies for private conduct can raise serious federalism concerns, H.R. 1592, and the bicameral, companion legislation in the Senate, S. 1105, has been drafted to avoid these concerns. Far from supplanting state authority, the proposed legislation defers to the proper role of the states. Federal authorities would be authorized to prosecute cases only after the Attorney General (or a Senate confirmed officer at the grade of Assistant Attorney General or higher) has certified in writing that the officer “has consulted with State or local law enforcement officials regarding the prosecution and determined that (A) the State does not have jurisdiction or does not intend to exercise jurisdiction; (B) the State has requested that the Federal Government assume jurisdiction; (C) the State does not object to the Federal Government assuming jurisdiction; or (D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.” H.R. 1592 and S. 1105 would thus create a federal authority that is only interstitial; it would allow federal authorities to fill in the gaps only where a state’s law does not adequately address the situation or where the state prefers to let the federal authorities handle the matter. By design, then, H.R. 1592 and S. 1105, would respect the primary role of the states in the administration and enforcement of criminal law, merely adding a backstop in this area of particular federal concern.

In recent years, in cases involving the Fourteenth Amendment, the Supreme Court has taken a seemingly less expansive view of congressional authority to prevent and remedy violations of civil rights by the states. In crucial respects, these recent rulings provide additional support for our conclusion and, in any event, do nothing to undermine it. First, the leading recent case on congressional power under the Fourteenth Amendment, Morrison v. United States, 529 U.S. 598 (2000), underscores a central distinction between congressional power under the Thirteenth and Fourteenth Amendments. Whereas the Fourteenth Amendment prohibits states from violating individual civil rights, the Thirteenth Amendment extends to private conduct. Thus, the state action limitation, which the Morrison Court emphasized as a vital limit on congressional power to enforce the Fourteenth Amendment, simply has no application to the Thirteenth Amendment. Id. at 620-627.

Morrison and subsequent cases recognize that, when Congress enforces one of the rights granted by the Fourteenth Amendment as against the states, it may go beyond simply redressing actual violations of those rights. It may also enact prophylactic measures to safeguard against violations of specific constitutional prohibitions. In delineating the limits of that prophylactic authority, the Supreme Court has held that the legislation must be proportional and congruent to the unconstitutional conduct sought to be prevented. See Boerne v. Flores, 521 U.S. 507 (1997).[5] The Court viewed the purpose of this requirement as being to protect the proper role of the states in our federal system. If congressional power to enforce the Fourteenth Amendment were read too broadly, it would risk authorizing the federal government to intrude into spheres that the Constitution is understood to have reserved to the states. Moreover, H.R. 1592 respects these principles of federalism, as described above, by preserving the primary role of the states in defining and enforcing criminal prohibitions.

Of course, the recent line of Fourteenth Amendment decisions is not directly pertinent to H.R. 1592, because the leading precedents under the Thirteenth Amendment, such as Jones and Griffin, remain the governing law and give Congress greater leeway than it might have with respect to enforcement of the Fourteenth Amendment.[6] But even if the Court were one day to hold that the congruence and proportionality requirements extend to the Thirteenth Amendment (and that H.R. 1592 were understood as prophylactic), the carefully circumscribed authority for federal criminal prosecutions provided in the legislation plainly meets those standards. 

While we take no position on the merits of the proposed legislation as a matter of policy, we believe that these provisions of H.R. 1592 and S. 1105 fall well within Congress’s constitutional authority. Moreover, we believe that the proposed legislation as drafted is fully consistent with the constitutional principles of federalism.   

Sincerely,

Anthony V. Alfieri

Professor and Director, Center for

Ethics & Public Service

University of Miami School of Law

David J. Barron

Professor of Law

Harvard Law School

Walter E. Dellinger III

Douglas Blount Maggs Professor

Duke University School of Law

Michael C. Dorf

Isidor & Seville Sulzbacher

Professor of Law

Columbia University School of Law

Dawn E. Johnsen

Professor of Law

Indiana University School of Law –Bloomington

Risa Goluboff

Associate Professor of Law

University of Virginia Law School

Bradley C. Karkkainen

Henry J. Fletcher Professor of Law

University of Minnesota Law School

Neil J. Kinkopf

Professor of Law

Georgia State University College of Law

Martin S. Lederman

Visiting Professor of Law

Georgetown University Law Center

Gia B. Lee

Acting Professor

University of California at Los Angeles School of Law

Goodwin Liu

Assistant Professor of Law

Boalt Hall School of Law, UC Berkeley

Richard Schragger

Professor of Law

Class of 1948 Professor of

Scholarly Research in Law

University of Virginia School of Law

Christopher H. Schroeder

Charles S. Murphy Professor

Duke University School of Law

Laurence H. Tribe

Carl M. Loeb University Professor

Harvard Law School

* Institutional affiliations are listed for identification purposes only.

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[1] The SAP does not challenge the constitutionality of this subsection. Because § 249(b) contains several alternative jurisdictional elements, its coverage can readily be understood to be coterminous with Congress’s power under the Commerce Clause. 

The SAP raises the objection that the subsection protects against hate crimes motivated by certain types of animus (based on gender, sexual orientation, religion, and disability) but not by other forms of discriminatory violence that might be considered equally worthy of statutory attention. This is at most a policy objection, not a constitutional objection, especially in light of the comparable or greater statutory protections extended in Section 249(b) with respect to hate crimes motivated by animus based on race, color, religion or national origin. Congress has enacted, and the Supreme Court has affirmed, numerous statutes protecting veterans, the elderly, and pregnant women in various ways. In enacting §249(a), Congress stands on the same firm footing as it did when enacting these other statutes, reflecting the basic principle that when it legislates, Congress need not address every conceivable societal ill. 

[2] See, e.g., Akhil Reed Amar, Remember the Thirteenth, 10 Const. Comm. 403, 405 (1993)(“slavery is a system of domination, degradation and subordination ….”).

[3] The Supreme Court limited, on grounds of statutory construction, the scope of Runyon in Patterson v. MacLean Credit Union, 491 U.S. 164 (1989). Congress responded to Patterson by expanding the scope of the underlying legislation in the Civil Rights Act of 1991.

[4] This includes even discriminatory violence against races that were not themselves the direct victims of slavery. The Supreme Court has ruled that Thirteenth Amendment and congressional power under it extend to protecting “‘every race and individual.'” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (quoting Hodges v. United States, 203 U.S. 1, 16-17 (1906)). 

[5] We do not mean to suggest that we agree that Boerne v. Flores is correctly decided as a matter of constitutional interpretation, a matter that is the subject of academic controversy See, e.g., Robert Post & Reva Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation after Morrison and Kimel, 110 Yale L.J. 441 (2000). 

[6] See DOJ Letter at 19-21; see also Nelson, 277 F.3d at 185 n.20.