United States v. Hatch

FILED
United States Court of Appeals
Tenth Circuit
July 3, 2013
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-2040
WILLIAM HATCH,
Defendant-Appellant.
----------------------------------------
THIRTEENTH AMENDMENT
SCHOLARS,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:10-CR-03104-BB-2)
Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Appellant.
Thomas E. Chandler, Attorney, Civil Rights Division (Thomas E. Perez, Assistant
Attorney General, and Jessica Dunsay Silver, Attorney, Civil Rights Division,
with him on the brief) Department of Justice, Appellate Section, Washington,
District of Columbia, for Appellee.
George Bach, Counsel of Record, and Dawinder S. Sidhu, University of New
Mexico School of Law, William M. Carter, Jr., Pittsburgh, Pennsylvania,
Alexander Tsesis, Chicago, Illinois, and Rebecca E. Zietlow, Toledo, Ohio on the
brief for Amicus Curiae.
Before MURPHY, O’BRIEN, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Three New Mexico men kidnaped a disabled Navajo man and branded a
swastika into his arm. The United States charged the assailants with committing a
hate crime under the recently enacted Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act, Pub. L. No. 111-84, Div. E, 123 Stat. 2835 (2009),
codified in relevant part at 18 U.S.C. § 249. As relevant here, the Hate Crimes
Act makes it a felony to physically attack a person because of that person’s race.
The three assailants contended in district court that the Hate Crimes Act is
unconstitutional, claiming Congress lacks the authority to criminalize purely
intrastate conduct of this character. The government countered that the
Thirteenth Amendment, which abolished slavery in the United States, gave
Congress the necessary authority. The district court agreed with the government,
holding that Congress’s power to enforce the Thirteenth Amendment authorized it
to enact 18 U.S.C. § 249(a)(1), the portion of the Hate Crimes Act under which
the three men were charged.
One of those men, William Hatch, then pleaded guilty while reserving his
right to appeal. He now renews his challenge to the constitutionality of the Act.
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Like the district court, we conclude that Congress has power under the Thirteenth
Amendment to enact § 249(a)(1). Although the Thirteenth Amendment by its
terms applies to slavery and involuntary servitude, Supreme Court precedent
confirms Congress’s authority to legislate against slavery’s “badges and
incidents” as well. In particular, the Supreme Court held in Jones v. Alfred H.
Mayer Co., 392 U.S. 409 (1968)—a case permitting a federal private right of
action against private individuals for housing discrimination—that Congress itself
has power to determine those badges and incidents.
Section 249(a)(1) rests on the notion that a violent attack on an individual
because of his or her race is a badge or incident of slavery. Congress reached this
conclusion by accounting for the meaning of “race” when the Thirteenth
Amendment was adopted, the state of mind of the attacker, and the attack itself.
By so doing, and under the authority of Jones, we conclude Congress rationally
determined that racially motivated violence is a badge or incident of slavery
against which it may legislate through its power to enforce the Thirteenth
Amendment.
We therefore affirm.
I. Background
Hatch and two of his friends, Paul Beebe and Jesse Sanford, worked
together at a restaurant in Farmington, New Mexico. All three are white.
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In April 2010, a mentally disabled Navajo man—whom the record
identifies only as “V.K.”—came to the restaurant. Beebe convinced V.K. to come
to Beebe’s apartment. Hatch and Sanford later joined Beebe there.
At Beebe’s apartment, the three white men drew on V.K.’s back with
markers. They told him they would draw “feathers” and “native pride” but
actually drew satanic and anti-homosexual images. They then shaved a swastika-
shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and
used it to brand a swastika into V.K.’s arm.
Based on these actions, the State of New Mexico charged Beebe, Sanford,
and Hatch under state law with kidnaping, aggravated battery, and conspiracy to
commit both of these crimes.
Six months later—while the state prosecution was still pending—the
federal government charged Beebe, Sanford, and Hatch with violating (and
conspiracy to violate) 18 U.S.C. § 249(a)(1), a portion of the Hate Crimes Act
making it unlawful to subject a person to physical violence on account of the
person’s race.
In May 2011, Hatch was convicted in New Mexico state court of conspiracy
to commit aggravated battery, but otherwise acquitted. That same month, Beebe,
Sanford, and Hatch filed a motion in federal court to dismiss the federal
indictment, claiming that 18 U.S.C. § 249(a)(1) is unconstitutional. The district
court rejected that argument in a thorough opinion. United States v. Beebe, 807
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F. Supp. 2d 1045 (D.N.M. 2011). Hatch then entered a conditional guilty plea on
the federal conspiracy charge, preserving his right to appeal the constitutional
question.
In September 2011, the State of New Mexico sentenced Hatch to
eighteen months’ imprisonment. In February 2012, the district court sentenced
Hatch to the lesser of fourteen months’ imprisonment or time served, running
concurrently with his state sentence.
II. Analysis
The sole question before us is whether the portion of the Hate Crimes Act
under which Hatch was convicted, 18 U.S.C. § 249(a)(1), is a constitutional
exercise of Congress’s power to enforce the Thirteenth Amendment. We review
challenges to the constitutionality of a statute de novo. United States v. Carel,
668 F.3d 1211, 1216 (10th Cir. 2011), cert. denied, 132 S. Ct. 2122 (2012).
A. The Thirteenth Amendment Enforcement Power
Although this case centers on the Thirteenth Amendment, some of Hatch’s
arguments rely on cases arising under the other two Reconstruction Amendments
—the Fourteenth and Fifteenth Amendments. We therefore begin with a brief
description of all three Reconstruction Amendments, and then turn to our analysis
of the Thirteenth Amendment and the Hate Crimes Act specifically.
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1. The Reconstruction Amendments
The Thirteenth Amendment prohibits slavery and involuntary servitude,
while extending power to Congress to enforce its provisions:
Section 1. 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.
Section 2. Congress shall have power to enforce this
article by appropriate legislation.
Congress approved the Thirteenth Amendment in January 1865 as the Civil
War drew to a close. With the Confederacy’s surrender and President Lincoln’s
assassination the following April, twenty-seven states ratified the amendment by
December 1865 and it came into force that same month.
Two other amendments soon followed, forming a trilogy referred to as the
Reconstruction Amendments. The Fourteenth Amendment resulted in part from
lingering doubts that the Thirteenth Amendment authorized civil rights legislation
enacted under its auspices. See Jennifer Mason McAward, The Scope of
Congress’s Thirteenth Amendment Enforcement Power After City of Boerne v.
Flores, 88 Wash. U. L. Rev. 77, 115–16 (2010) (“McAward, Enforcement
Power”). Congress accordingly proposed the Fourteenth Amendment, which the
states adopted in 1868. As is well known, the Fourteenth Amendment protects
persons against various state-sponsored intrusions and discriminations. It also
contains an enforcement clause similar to Section 2 of the Thirteenth Amendment:
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“The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.” U.S. Const. amend. XIV, § 5.
The states adopted the third of the Reconstruction Amendments, the
Fifteenth Amendment, in 1870. In addition to guaranteeing the right to vote
regardless of “race, color, or previous condition of servitude,” U.S. Const. amend.
XV, § 1, the Fifteenth Amendment contains an enforcement provision similar to
those found in the Thirteenth and Fourteenth Amendments: “The Congress shall
have power to enforce this article by appropriate legislation,” id. § 2.
2. The “Badges and Incidents” of Slavery
At issue here is the first of the Reconstruction Amendments, the Thirteenth.
On its face, it appears simply to abolish slavery and give Congress power to
enforce that abolition. The Supreme Court soon clarified, however, that
Congress’s enforcement power under Section 2 also extends to eradicating
slavery’s lingering effects, or at least some of them.
In 1875, Congress acted under both the Thirteenth and Fourteenth
Amendments to pass what was knows as the Civil Rights Act. That act aimed to
guarantee “[t]hat all persons within the jurisdiction of the United States shall be
entitled to the full and equal enjoyment of” public facilities such as inns, theaters,
and rail cars, “subject only to . . . conditions and limitations . . . applicable alike
to citizens of every race and color.” 18 Stat. 336. Any person refusing to abide
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by this guarantee, including private citizens, could be guilty of a misdemeanor.
Id.
In 1883, five cases arising under this act came to the Supreme Court in an
appeal consolidated as the Civil Rights Cases. All five involved private citizens
or entities denying African Americans access to public accommodations on equal
terms with other races. Civil Rights Cases, 109 U.S. 3, 4 (1883).
“Has Congress constitutional power to make such a law?” the Supreme
Court inquired. Id. at 10. The Court could find no such power under the
Fourteenth Amendment, given that it restricts state action rather than private
action. Id. at 10–19. The Court then turned to the Thirteenth Amendment. That
Amendment as an original matter had a broader focus, and was “not a mere
prohibition of State laws establishing or upholding slavery, but an absolute
declaration that slavery or involuntary servitude shall not exist in any part of the
United States.” Id. at 20. Beyond simply “nullifying all state laws which
establish or uphold slavery,” the Court reasoned that the Thirteenth Amendment
has a reflex character also, establishing and decreeing
universal civil and political freedom throughout the
United States; and it is assumed that the power vested in
Congress to enforce the article by appropriate
legislation, clothes Congress with power to pass all laws
necessary and proper for abolishing all badges and
incidents of slavery in the United States . . . .
Id. (emphasis added).
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 But “[c]an the act of a mere individual, the owner of the inn, the public
conveyance, or place of amusement, refusing the accommodation, be justly
regarded as imposing any badge of slavery or servitude upon the applicant . . . ?”
Id. at 24. The Court answered no:
There were thousands of free colored people in this
country before the abolition of slavery, enjoying all the
essential rights of life, liberty, and property the same as
white citizens; yet no one, at that time, thought that it
was any invasion of their personal status as freemen
because they were not admitted to all the privileges
enjoyed by white citizens, or because they were
subjected to discriminations in the enjoyment of
accommodations in inns, public conveyances, and places
of amusement. Mere discriminations on account of race
or color were not regarded as badges of slavery.
Id. at 25 (emphasis in original). With this reasoning, the Court struck down the
Civil Rights Act as unconstitutional.
Historically speaking, it bears noting that the contemporaneous meaning of
“incidents of slavery,” both before and soon after the adoption of the Thirteenth
Amendment, generally referred to the legal restrictions placed on slaves, as well
as slaveowners’ legal rights toward their slaves. See George Rutherglen, The
Badges and Incidents of Slavery and the Power of Congress to Enforce the
Thirteenth Amendment, in The Promises of Liberty: The History and
Contemporary Relevance of the Thirteenth Amendment 163, 164–65 (Alexander
Tsesis ed., 2010) (“Rutherglen, Badges and Incidents”); Jennifer Mason
McAward, Defining the Badges and Incidents of Slavery, 14 U. Pa. J. Const. L.
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561, 570–75 (2012) (“McAward, Defining the Badges”). As is well known, slaves
could not own property, could not enter into contracts, and so forth. Slaveowners,
by contrast, had complete control over their slaves and even their slaves’ children.
These aspects of slavery, as well as the so-called Black Codes that attempted to
perpetuate the master/slave relationship as much as possible after emancipation,
are what were then considered to be “incidents of slavery.” See id.
“Badges of slavery,” by contrast, had a somewhat looser meaning. See id.
at 575–82. In the antebellum years, it could refer literally to a badge worn by
slaves, such as copper badges issued to certain slaves in Charleston, South
Carolina. See generally Harlan Greene et al., Slave Badges and the Slave-Hire
System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and
Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was
sometimes used as shorthand for “evidence permitting an inference from external
appearances to legal status”). In addition, “badges of slavery” could refer to the
psychological scars that slavery inflicted upon slaves, McAward, Defining the
Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges
and Incidents, at 166.
In postbellum legal discourse, “badges of slavery” came to be used
primarily as a synonym for slavery’s continuing “incidents,” as perpetuated by the
Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and
Incidents, at 165. But “badges of slavery” also arguably extended to “widespread
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[private] violence and discrimination, disparate enforcement of racially neutral
laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.
Whatever “badges of slavery” and “incidents of slavery” meant in isolation,
the compound phrase, “badges and incidents of slavery,” first arose in the Civil
Rights Cases and “quickly became the Supreme Court’s standard gloss upon the
powers of Congress under the Thirteenth Amendment.” Rutherglen, Badges and
Incidents, at 172. In other words, it is not clear the Supreme Court in the Civil
Rights Cases intended “badges and incidents of slavery” as a reference to the
phrase’s component parts as contemporarily understood. It was, rather, “a new
characterization of Congress’s power.” McAward, Defining the Badges, at 583.
The Civil Rights Cases obviously interpreted this characterization narrowly.
Following this narrow reading of what constitutes the badges and incidents of
slavery, the Supreme Court later held that Congress’s badges-and-incidents
authority did not permit it to criminalize threats of violence used to deter black
persons from obtaining gainful employment. Hodges v. United States, 203 U.S. 1
(1906). Even if “one of the disabilities of slavery, one of the indicia of its
existence, was a lack of power to make or perform [employment] contracts,” id. at
17 (emphasis in original), the Court believed that permitting Congress to
criminalize threats of violence used to deter blacks from obtaining employment
would permit Congress to legislate against nearly every wrong committed by one
person against another, see id. at 18–19. This was so, said the Court, because the
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Thirteenth Amendment extends its protections to all races, not just formerly
enslaved races. Id. at 16–17.
In other words, the Court in Hodges reasoned that if badges-and-incidents
extends to the type of conduct at issue there and if Congress’s badges-and-
incidents authority applies to all races, then Congress could legislate against
“every act done to an individual which was wrong if done to a free man, and yet
justified in a condition of slavery.” Id. at 19. The Court gave no weight to the
element that distinguished a civil rights offense from an ordinary offense, namely,
that the defendant acted because of the victim’s race. See id. at 18 (quoting
government’s concession that the statute’s constitutionality hung on “the
additional element . . . of an injury [inflicted] solely on account of [the victim’s]
color”); cf. id. at 26, 29–30, 34–37 (Harlan, J., dissenting) (repeatedly pointing
out the requirement that the defendant act “because of” the victim’s race).
Sixty years after Hodges, however, the Court adopted a more generous
approach to Congress’s Thirteenth Amendment enforcement power, giving
Congress relatively wide latitude both to determine what qualifies as a badge or
incident of slavery and how to legislate against it. In Jones v. Alfred H. Mayer
Co., 392 U.S. 409 (1968), a black prospective home buyer was turned away
because the sellers refused to sell “for the sole reason that [plaintiff] [was] a
Negro.” Id. at 412. The plaintiff sued under 42 U.S.C. § 1982, which declares
that “[a]ll citizens of the United States shall have the same right, in every State
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and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.” Echoing the Civil Rights
Cases, the seller countered that § 1982 must be unconstitutional to the extent it
applies to purely private conduct, rather than state action.
The Supreme Court disagreed. It concluded that Congress had enacted
§ 1982 under its “power to enforce [the Thirteenth Amendment] by appropriate
legislation.” Jones, 392 U.S. at 437–40. Given that the Thirteenth Amendment
contains no language limiting its effect to government-caused or -supported
conduct (unlike the Fourteenth Amendment), the Supreme Court held that
Congress could apply § 1982 to private conduct, and that it intended to do so.
Id. at 429–36.
As to the question of whether Section 2 of the Thirteenth Amendment
authorized legislation such as § 1982, the Court returned to the badges-and-
incidents language derived from the Civil Rights Cases. But far from the
constricted view taken in the Civil Rights Cases (and Hodges), the Court
emphasized a statement from one of the amendment’s sponsors, Senator Trumbull
of Illinois, declaring that “it is for Congress to adopt such appropriate legislation
as it may think proper, so that it be a means to accomplish the end.” Id. at 440
(citing Cong. Globe, 39th Cong., 1st Sess., 322).
“Surely Senator Trumbull was right,” the Court concluded. “Surely
Congress has the power under the Thirteenth Amendment rationally to determine
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what are the badges and the incidents of slavery, and the authority to translate
that determination into effective legislation.” Id. As to § 1982 specifically, the
Court could not “say that the determination Congress has made is an irrational
one” given that restrictions on property ownership and alienability were
indisputably a badge or incident of slavery. Id. at 440–41. Applying this rational
determination standard, the Court upheld § 1982 as a constitutional expression of
congressional power and overruled Hodges on this point. Id. at 441 n.78.
In sum, after these cases the Thirteenth Amendment can be seen as treating
most forms of racial discrimination as badges and incidents of slavery, and that
Congress not only has the power to enforce the amendment, but also to a certain
extent to define its meaning. That brings us to the Hate Crimes Act.
B. The Hate Crimes Act
Relying in part on the badges-and-incidents authority described in Jones,
Congress enacted the Hate Crimes Act in 2009, adding a new § 249 to Title 18.
Section 249 defines two separate offenses.
The first offense prohibits physical violence (or threats of it in certain
circumstances) on account of the victim’s race, color, religion, or national origin:
(1) Offenses involving actual or perceived race,
color, religion, or national origin.—Whoever, whether
or not acting under color of law, willfully causes bodily
injury to any person or, through the use of fire, a
firearm, a dangerous weapon, or an explosive or
incendiary device, attempts to cause bodily injury to any
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person, because of the actual or perceived race, color,
religion, or national origin of any person—
(A) shall be imprisoned not more than 10 years, fined
in accordance with this title, or both . . . .
18 U.S.C. § 249(a)(1). We refer to this as the “racial violence provision.” This is
the portion of the Act under which Hatch was charged and convicted.
Congress explicitly justified the racial violence provision under its
Thirteenth Amendment badges-and-incidents authority:
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.
Id. note (reprinting Pub. L. No. 111-84, § 4702(7) (2009)).
The second offense defined in § 249 has a similar character, but protects
more broadly against violence on account of religion, national origin, gender,
sexual orientation, gender identity, or disability. It also requires the government
to prove a connection to interstate commerce or that the offense occurred in a
federal territory:
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(2) Offenses involving actual or perceived religion,
national origin, gender, sexual orientation, gender
identity, or disability.—
(A) In general.—Whoever, whether or not acting under
color of law, in any circumstance described in
subparagraph (B) [regarding interstate commerce] or
paragraph (3) [regarding federal territories], willfully
causes bodily injury to any person or, through the use of
fire, a firearm, a dangerous weapon, or an explosive or
incendiary device, attempts to cause bodily injury to any
person, because of the actual or perceived religion,
national origin, gender, sexual orientation, gender
identity, or disability of any person—
(i) shall be imprisoned not more than 10 years, fined
in accordance with this title, or both . . . .
Id. § 249(a)(2).
That provision is not before us in this appeal.
C. Constitutionality of 18 U.S.C. § 249(a)(1)
The racial violence provision’s constitutionality turns on the scope of
Congress’s authority to prohibit racial violence as a badge or incident of slavery.
In this regard, as we explained above, the Supreme Court’s Jones decision
establishes a “rational determination” test. As the Court there stated, “Surely
Congress has the power under the Thirteenth Amendment rationally to determine
what are the badges and the incidents of slavery, and the authority to translate
that determination into effective legislation.” 392 U.S. at 440. Thus, under
Jones, if Congress rationally determines that something is a badge or incident of
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slavery, it may broadly legislate against it through Section 2 of the Thirteenth
Amendment.
Hatch argues, however, that Congress’s badges-and-incidents authority has
grown substantially narrower in the past few decades. Hatch specifically relies on
a synthesis of federalism concepts derived from the Tenth Amendment and
post-Jones Supreme Court decisions regarding Congress’s powers under the
Commerce Clause and Section 5 of the Fourteenth Amendment. Hatch believes
these authorities demonstrate that the racial violence provision is an example of
Congressional overreach—an impermissible intrusion into matters the
Constitution reserves to the states.
While Hatch’s arguments raise important federalism questions, in light of
Jones it will be up to the Supreme Court to choose whether to extend its more
recent federalism cases to the Thirteenth Amendment. In addition, the racial
violence provision displays limiting principles that are arguably more confining
than Jones itself contemplated. Thus, we need not decide the outer limits of
Jones’s rational determination standard because the racial violence provision can
be seen in a much narrower light.
1. Federalism Concerns
Hatch’s federalism arguments begin with the Tenth Amendment: “The
powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.” According
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to Hatch, the Tenth Amendment dictates that “Thirteenth Amendment legislation
is not ‘appropriate’ if it fails to accommodate the state police power.” Aplt. Br.
at 24.
The Tenth Amendment certainly highlights the structural significance of
federalism in our constitutional system. But when the Constitution explicitly
grants Congress authority to act, the Tenth Amendment gives way: “If a power is
delegated to Congress in the Constitution, the Tenth Amendment expressly
disclaims any reservation of that power to the States . . . .” New York v. United
States, 505 U.S. 144, 156 (1992). The Thirteenth Amendment, enacted after the
Tenth Amendment, explicitly gives Congress power to enforce its prohibitions.
No party has cited, nor could we find, any authority stating that the Tenth
Amendment nonetheless imposes limits on Congress’s Thirteenth Amendment
powers.
But because the three Reconstruction Amendments “disclose[] a unity of
purpose,” Slaughter-House Cases, 83 U.S. 36, 67 (1872), Hatch proposes that a
Fourteenth Amendment case—City of Boerne v. Flores, 521 U.S. 507 (1997)—
demonstrates certain limits. City of Boerne evaluated the constitutionality of the
Religious Freedom Restoration Act (RFRA), which was Congress’s attempt to
legislatively overrule Employment Division v. Smith, 494 U.S. 872 (1990). Smith
had abrogated much of the Supreme Court’s earlier jurisprudence regarding
whether a neutral law of general application nonetheless impermissibly burdened
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a person’s First Amendment right to free exercise of religion. The pre-Smith test
required the government to demonstrate compelling need to apply such a law to a
religious objector. Id. at 882–84. Smith eliminated that requirement on the
theory that a neutral law of general application raises no free exercise concerns,
even if it burdens a religious objector’s ability to worship. Id. at 878–80.
Congress responded to Smith by enacting RFRA, which re-imposed a
stricter standard on the states—in effect, returning to the pre-Smith understanding
of the First and Fourteenth Amendments. Congress justified RFRA as
“appropriate legislation” under Section 5 of the Fourteenth Amendment, which
provides (similar to Section 2 of the Thirteenth Amendment) that “Congress shall
have power to enforce, by appropriate legislation, the provisions of this article.”
The Supreme Court, however, held that Congress had in fact attempted to amend
the Constitution legislatively . City of Boerne, 521 U.S. at 532. The Court
acknowledged that Section 5 of the Fourteenth Amendment gives Congress
important powers, but “[i]f Congress could define its [Section 5] powers by
altering the Fourteenth Amendment’s meaning, no longer would the Constitution
be superior paramount law, unchangeable by ordinary means.” Id. at 529
(internal quotation marks omitted).
The Court further insisted on “a congruence and proportionality between
the injury to be prevented or remedied and the means adopted to that end.” Id. at
520. The Court found an example of congruence and proportionality in South
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Carolina v. Katzenbach, 383 U.S. 301 (1966), which addressed the
constitutionality of the Voting Rights Act of 1965 under Section 2 of the Fifteenth
Amendment. That section states: “The Congress shall have power to enforce this
article by appropriate legislation.” Although South Carolina v. Katzenbach was a
Fifteenth Amendment case, City of Boerne found it instructive given that the
portions of the Voting Rights Act at issue applied only to specific areas of the
country where race-based voting discrimination had been especially prevalent.
City of Boerne, 521 U.S. at 530–33. 1 Such geographic tailoring—backed by
reliable congressional findings—provided congruence and proportionality to the
injury at stake. Id.
RFRA, by contrast, applied nationwide and placed “substantial costs” on
the states, “both in practical terms of imposing a heavy litigation burden on the
States and in terms of curtailing their traditional general regulatory power.” Id. at
534. “Laws valid under Smith would fall under RFRA without regard to whether
they had the object of stifling or punishing free exercise.” Id. RFRA therefore
exceeded Congress’s Fourteenth Amendment, Section 5 powers.
City of Boerne nowhere mentions the Tenth Amendment, the Thirteenth
Amendment, or Jones. It does, however, note the Reconstruction-Era Congress’s
1
Cf. Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse,
1968 Sup. Ct. L. Rev. 89, 101, 121–22 (criticizing Jones v. Alfred H. Mayer Co.
for failing to address evidence that Congress may have intended the 1866 Civil
Rights Act to apply only in the South).
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concern with ensuring that the Fourteenth Amendment did not grant general
police power to the national government. Id. at 520–24.
Similar concerns underlay two Commerce Clause cases on which Hatch
also relies, United States v. Lopez, 514 U.S. 549 (1995), and United States v.
Morrison, 529 U.S. 598 (2000). In Lopez, the Supreme Court addressed
Congress’s power under the Commerce Clause to enact the Gun-Free School
Zones Act. The act “neither regulate[d] a commercial activity nor contain[ed] a
requirement that the possession [of a gun in school zone] be connected in any way
to interstate commerce.” Lopez, 514 U.S. at 551. The Court therefore struck it
down as an impermissible attempt to exercise “general federal police power.” Id.
at 564.
In Morrison, the Supreme Court struck down a portion of the Violence
Against Women Act (VAWA) for similar reasons. VAWA provided a federal
civil remedy to victims of “violence motivated by gender.” Morrison, 529 U.S. at
605 (internal quotation marks omitted). This remedy, although civil in nature,
“cover[ed] a wide swath of criminal conduct.” Id. at 606. In enacting VAWA,
Congress found that gender-motivated violence affected interstate commerce
indirectly, but the Supreme Court “reject[ed] the argument that Congress may
regulate noneconomic, violent criminal conduct based solely on that conduct’s
aggregate effect on interstate commerce. The Constitution requires a distinction
between what is truly national and what is truly local.” Id. at 617–18. “Indeed,”
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the Court continued, “we can think of no better example of the police power,
which the Founders denied the National Government and reposed in the States,
than the suppression of violent crime and vindication of its victims.” Id. at 618.
The Court accordingly concluded that VAWA’s civil remedy exceeded Congress’s
powers under the Commerce Clause. 2
Hatch believes that the Jones approach to the Thirteenth Amendment
undermines the principles animating City of Boerne, Lopez, and Morrison—or in
other words, that Jones creates a constitutional loophole through which Congress
can enact all sorts of otherwise impermissible police power legislation. For
example, says Hatch, if all Congress must do is rationally determine that
something is a badge or incident of slavery, then it “would permit the federal
government . . . to combat such ills as racial profiling, racial bias of jurors, and
race discrimination in imposition of the death penalty,” Aplt. Br. at 29, or take
control of education and family life “given the deprivations of education and
familial rights that characterized slavery,” Reply Br. at 3.
At its core, Hatch’s argument raises important concerns we share. “Badges
and incidents of slavery,” taken at face value, puts emphasis solely on the conduct
Congress seeks to prohibit, and it seems to place few limits on what that conduct
2
The Court also held that Section 5 of the Fourteenth Amendment did not
give Congress power to enact VAWA’s civil remedy because Congress sought to
regulate private conduct, not state action, and because Congress had not shown
geographic “congruence and proportionality.” Id. at 625–27.
-22-
might be. Given slaves’ intensely deplorable treatment and slavery’s lasting
effects, nearly every hurtful thing one human could do to another and nearly
every disadvantaged state of being might be analogized to slavery—and thereby
labeled a badge or incident of slavery under Jones’s rational determination test.
In effect, this interpretation gives Congress the power to define the meaning of
the Constitution—a rare power indeed. See City of Boerne, 521 U.S. at 529. And
many legal scholars have encouraged broad use of Section 2 power in essentially
this way, 3 which would arguably raise the sort of federalism concerns articulated
in City of Boerne, Lopez, and Morrison. Others have argued for a narrower
interpretation that relates more directly to slavery as an institution rather than to
any individual feature of slavery. 4
3
See, e.g., Douglas L. Colbert, Liberating the Thirteenth Amendment, 30
Harv. C.R.-C.L. L. Rev. 1, 49 (1995) (“a growing number of legal academics and
law students are acknowledging the Thirteenth Amendment’s usefulness in
addressing many of today’s critical race and human rights issues”); id. at 47–49
(proposing the Thirteenth Amendment as a means to combat racial disparity in
capital sentencing); Pamela D. Bridgewater, Reproductive Freedom as Civil
Freedom: The Thirteenth Amendment’s Role in the Struggle for Reproductive
Rights, 3 J. Gender Race & Just. 401, 409–10 (2000) (arguing that “the history of
reproductive abuse during the American slavery era” brings reproductive rights
generally within the Thirteenth Amendment’s ambit); Akhil Reed Amar & Daniel
Widawsky, Child Abuse As Slavery: A Thirteenth Amendment Response to
DeShaney, 105 Harv. L. Rev. 1359, 1364–65 (1992) (reasoning that an abusive
parent creates master-slave relationship toward the child, obligating the state to
intervene and making it liable for failure to do so).
4
See, e.g., McAward, Defining the Badges, at 621–29 (proposing that
“badges and incidents” should be limited to race-motivated public or widespread
private conduct that resembles the institution of slavery and is likely to reimpose
(continued...)
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While this debate raises worthwhile questions, the Supreme Court has never
revisited the rational determination test it established in Jones. And more
importantly for our purposes, none of the federalism authorities Hatch cites
mention Jones or the Thirteenth Amendment. 5 Thus, even if we assume Hatch’s
authorities impliedly undermine Jones’s approach to the Thirteenth Amendment,
we may not blaze a new constitutional trail simply on that basis: “If a precedent
of [the Supreme] Court has direct application in a case”—such as Jones has to
this case—“yet appears to rest on reasons rejected in some other line of decisions,
the Court of Appeals should follow the case which directly controls, leaving to
[the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also
Thomas More Law Ctr. v. Obama, 651 F.3d 529, 559 (6th Cir. 2011) (Sutton, J.,
concurring) (“[T]he Supreme Court has considerable discretion in resolving
[novel constitutional questions]. [That] does not free lower court judges from the
duty to respect the language and direction of the Court’s precedents . . . .”).
4
(...continued)
de facto slavery); see also George Rutherglen, State Action, Private Action, and
the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1403 (2008) (characterizing
“whether the Thirteenth Amendment prohibits practices that do not closely
resemble traditional forms of slavery” as “the right question” when attempting to
discern the scope of Congress’s badges-and-incidents authority) (“Rutherglen,
State Action”).
5
See also McAward, Enforcement Power, at 81 (“In light of City of
Boerne, Jones is arguably a remnant of the past. However, the [Supreme] Court
itself has never explicitly questioned the Jones standard . . . .”).
-24-
Thus, we must leave it to the Supreme Court to bring Thirteenth
Amendment jurisprudence in line with the structural concerns that prompted the
limits announced in City of Boerne, Lopez, and Morrison.
2. Internal Limitations Within 18 U.S.C. § 249(a)(1)
Further, even under Jones we see limiting principles to congressional
authority, and the racial violence provision respects those limits.
Although “badges and incidents of slavery” could be interpreted as giving
Congress authority to legislate regarding nearly every social ill (because nearly
all can be analogized to slavery or servitude), the racial violence provision does
not take such an approach. Rather, the racial violence provision focuses on three
connected considerations: (1) the salient characteristic of the victim, (2) the state
of mind of the person subjecting the victim to some prohibited conduct, and
(3) the prohibited conduct itself. Each consideration receives attention in the
racial violence provision and leads us to conclude that Congress met the Jones
test in rationally determining racially motivated violence to be a badge or incident
of slavery that it could prohibit under its Section 2 authority.
First, concerning the salient characteristic of the victim—“race, color,
religion, or national origin”—Congress confined the racial violence provision’s
reach to aspects of race as understood in the 1860s when the Thirteenth
Amendment was adopted. As to religion and national origin specifically,
Congress found that “members of certain religious and national origin groups
-25-
were . . . perceived to be distinct ‘races’” in the 1860s and therefore sought to
protect these categories “at least to the extent such religions or national origins
were regarded as races” in the 1860s. 18 U.S.C. § 249 note (reprinting Pub. L.
No. 111-84, § 4702(8)). Supreme Court precedent supports this finding. See
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (noting that
Congress of the 1860s and ’70s often used “race” to refer to distinctions we
would likely now think of as matters of national origin or religion rather than
race); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (same).
Congress made no similar findings for “color,” but there is no reasonable
dispute that “color” has long been used as a synonym for “race,” particularly with
respect to African Americans.
By contrast, Congress placed non-racial classifications—gender, sexual
orientation, gender identity, and disability—in a separate paragraph and explicitly
linked those classifications to the Commerce Clause or Congress’s power over
federal territories. See 18 U.S.C. § 249(a)(2). Congress likewise repeated the
protection for “religion” and “national origin” in that paragraph, presumably to
cover circumstances in which a particular religion or national origin was not
perceived as a distinct race in the 1860s.
Accordingly, Congress chose to extend the racial violence provision only to
persons who embody a trait that equates to “race” as that term was understood in
the 1860s.
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The second aspect of badges-and-incidents on display in the racial violence
provision is the state of mind of the person subjecting the victim to some
prohibited conduct. This further confines the statute’s reach. Congress did not
seek to punish all violence against those who embody a trait that equates to
“race.” Rather, Congress seeks to punish only those who act “because of the
[victim’s] actual or perceived race.” 18 U.S.C. § 249(a)(1) (emphasis added).
That is exactly what happened in this case.
The third aspect of badges-and-incidents—the prohibited conduct itself—
requires little discussion in light of the foregoing. Congress could rationally
conclude that physically attacking a person of a particular race because of animus
toward or a desire to assert superiority over that race is a badge or incident of
slavery. The antebellum North Carolina Supreme Court, for example,
characterized unrestrained master-on-slave violence as one of slavery’s most
necessary features. State v. Mann, 13 N.C. (2 Dev.) 263, 1829 WL 252, at *2–3.
“[U]ncontrolled authority over the body,” it said, is the only thing “which can
operate to produce” a slave’s necessary obedience. Id. at *2. “The power of the
master must be absolute, to render the submission of the slave perfect.” Id.; see
also United States v. Nelson, 277 F.3d 164, 189 (2d Cir. 2002) (“slavery in
general . . . centrally involves the master’s constant power to use private violence
against the slave”); Neal v. Farmer, 9 Ga. 555, 1851 WL 1474, at *8 (stating that
being “liable to beating . . . and every species of chastisement” were “incidents of
-27-
slavery”); George M. Stroud, A Sketch of the Laws Relating to Slavery 31, 38 (2d
ed. 1856) (listing among the “incidents” of slavery, “[t]he master may, at his
discretion, inflict any punishment on the person of his slave”); Rutherglen, State
Action, at 1399 (“the principal feature of the law of slavery was the ‘master’s
justice’ over his slaves, who had virtually no legal protection from the master’s
decision to discipline and punish”). Just as master-on-slave violence was
intended to enforce the social and racial superiority of the attacker and the
relative powerlessness of the victim, Congress could conceive that modern
racially motivated violence communicates to the victim that he or she must
remain in a subservient position, unworthy of the decency afforded to other races.
In sum, Congress employed a limited approach to badges-and-incidents,
applying that concept to: (a) actions that can rationally be considered to resemble
an incident of slavery when (b) committed upon a victim who embodies a trait
that equates to “race” as that term was understood in the 1860s, and (c) motivated
by animus toward persons with that trait. While Congress’s three-faceted
approach is nowhere clearly spelled out in case law, and we therefore have no
occasion to decide whether legislation enacted under Section 2 of the Thirteenth
Amendment must conform to this approach, we have no trouble endorsing this
approach as a means to rationally determine the badges and incidents of slavery.
While facially broad, the Jones formulation supports the narrower approach
Congress took in the racial violence provision—and we need not speculate on
-28-
whether a broader criminalization of conduct under this rationale would pass
constitutional review.
We therefore conclude that Section 2 of the Thirteenth Amendment
authorized Congress to enact the racial violence provision of the Hate Crimes
Act.
D. The Certification Requirement
Hatch also challenges the Hate Crimes Act’s requirement that the Attorney
General certify any prosecution under the Act:
(b) Certification requirement—
(1) In general.—No prosecution of any offense
described in this subsection [6] may be undertaken by the
United States, except under the certification in writing
of the Attorney General, or a designee, that—
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal
Government assume jurisdiction;
6
We assume “this subsection” is a drafting mistake and should actually
say “this section,” i.e., § 249. If taken literally, “this subsection” would refer to
itself, i.e., subsection 249(b). But subsection 249(b) does not describe any
offense. The literal reading would therefore render it nonsensical. Cf. United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (“The plain meaning of
legislation should be conclusive, except in the rare cases in which the literal
application of a statute will produce a result demonstrably at odds with the
intentions of its drafters.” (internal quotation marks omitted; alterations
incorporated)); Gilmore v. United States, 699 A.2d 1130, 1132 (D.C. 1997)
(construing a reference to “this subsection” to mean “this section” because the
reference would otherwise be circular and meaningless).
-29-
(C) the verdict or sentence obtained pursuant to State
charges left demonstratively unvindicated the Federal
interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the
public interest and necessary to secure substantial
justice.
Id. § 249(b)(1). In Hatch’s case, the government filed a “Notice of Certification”
showing that an assistant attorney general certified the prosecution under
subparagraph (D).
Hatch contends the certification requirement represents Congress’s attempt
to insert City of Boerne-like congruence and proportionality into the Act. Hatch
appears to be saying that, rather than the geographic congruence and
proportionality the Supreme Court endorsed in City of Boerne, Congress
attempted to create congruence and proportionality by limiting prosecutors’
discretion to bring hate crimes cases. And this case supposedly proves that such
congruence and proportionality is a sham because the federal government indicted
Hatch without awaiting the result of his state prosecution. In particular, Hatch
argues that the certification prong under which he was indicted—“a prosecution
by the United States is in the public interest and necessary to secure substantial
justice”—imposes no real limits on federal power.
We see no constitutional significance in the certification requirement.
Similar certification requirements have existed in Thirteenth Amendment
-30-
legislation long before 1997, when the Supreme Court introduced the “congruence
and proportionality” standard through City of Boerne.
For example, 18 U.S.C. § 245 criminalizes racially motivated violence
intended to dissuade the victim from “participating in or enjoying any benefit,
service, privilege, program, facility or activity provided or administered by any
State or subdivision thereof.” Id. § 245(b)(2)(B). And it prohibits the
government from commencing prosecutions for that offense without Attorney
General certification that “a prosecution by the United States is in the public
interest and necessary to secure substantial justice.” Id. § 245(a)(1). This has
been the law since 1968. See id. (statutory credits).
Similarly, 18 U.S.C. § 247 criminalizes vandalism or destruction of
“religious real property because of the race, color, or ethnic characteristics of any
individual associated with that religious property.” Id. § 247(c). The government
may not prosecute such an offense “except upon the certification in writing of the
Attorney General or his designee that in his judgment a prosecution by the United
States is in the public interest and necessary to secure substantial justice.” Id.
§ 247(e). Congress enacted § 247(c) in 1996—a year before City of Boerne—and
the certification requirement (§ 247(e)) has been a part of the statute since 1988,
when the statute applied only to offenses affecting interstate or foreign
commerce. See Pub. L. No. 100-346, § 1, 102 Stat. 644 (1988).
-31-
We have found no suggestion that these certification requirements were
somehow constitutionally required—or constitutionally deficient given that
“public interest” and “substantial justice” are expansive legal concepts. We
therefore see no merit in Hatch’s argument that the Hate Crimes Act’s
certification requirement somehow proves the need for congruence and
proportionality, or the lack of it in this case.
E. Equal Protection
Finally, Hatch advances what he characterizes as an equal protection
argument. He contends as follows: (1) Section 2 of the Thirteenth Amendment
authorizes Congress “to extend protection only to members of groups
disadvantaged by the legacy of slavery,” Aplt. Br. at 52 (emphasis added), so
(2) the racial violence provision really protects only certain racial groups, and
therefore (3) we must subject it to strict scrutiny because the racial violence
provision necessarily makes distinctions on the basis of race. This argument fails
for several reasons.
First, the Supreme Court has already stated that the Thirteenth Amendment
protects all races, not just those that had been subject to slavery in the United
States. As explained in Hodges:
While the inciting cause of the [Thirteenth] Amendment
was the emancipation of the colored race, yet it is not an
attempt to commit that race to the care of the nation. It
is the denunciation of a condition, and not a declaration
in favor of a particular people. It reaches every race and
-32-
every individual, and if in any respect it commits one
race to the nation, it commits every race and every
individual thereof. Slavery or involuntary servitude of
the Chinese, of the Italian, of the Anglo-Saxon, are as
much within its compass as slavery or involuntary
servitude of the African.
203 U.S. at 16–17. Jones overruled Hodges to some extent, see Jones, 392 U.S.
at 441 n.78, but not on this point. Eight years after Jones, the Supreme Court
cited this passage from Hodges with approval as demonstrating that the Court had
“previously ratified the view that Congress is authorized under the Enforcement
Clause of the Thirteenth Amendment to legislate in regard to every race and
individual.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18
(1976) (internal quotation marks omitted).
In any event, Hatch’s argument does not raise an equal protection problem.
Although the idea of equality before the law is deeply ingrained in our
jurisprudence, the legal guarantee of equal protection is not a supraconstitutional
principle by which the Constitution itself is judged. If, as Hatch claims, the
Thirteenth Amendment limits Congress to protecting formerly enslaved races,
then Thirteenth Amendment legislation limited to protecting formerly enslaved
races is constitutional because it is the very sort of legislation the Thirteenth
Amendment authorizes. 7
7
Hatch has not challenged the district court’s conclusion that whites
enslaved Navajos well into the 1800s. See Beebe, 807 F. Supp. 2d at 1053–54.
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Alternatively, one could argue that the later-enacted Fourteenth
Amendment somehow supersedes Congress’s supposed Thirteenth Amendment
power to enact legislation only to protect formerly enslaved races. 8 But if that is
the case, then we have no problem here because the racial violence provision does
not limit its reach to members of formerly enslaved races, but explicitly protects
“any person.” Thus, it does not run afoul of equal protection principles.
III. Conclusion
The portion of the Hate Crimes Act under which Hatch was charged and
convicted—18 U.S.C. § 249(a)(1)—is a lawful exercise of the powers granted to
Congress by Section 2 of the Thirteenth Amendment. We therefore affirm
Hatch’s conviction.
8
The Fourteenth Amendment, enacted in 1868, guarantees equal
protection, and by its terms it restricts only the states—not the federal
government. But the Supreme Court has construed the Fourteenth Amendment to
have inserted an equal protection understanding into the Fifth Amendment’s due
process clause. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
215–18 (1995).
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