an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Hate Crimes Legislation and the Thirteenth Amendment
This year the House of Representatives and Senate passed two closely related but differently formulated hate crimes bills. They will soon go to a conference committee whose responsibility will be to reconcile the differing texts. The critical distinction between the two is that the Senate version relies on both the Thirteenth Amendment and Commerce Clause as the sources of Congress’s authority to pass hate crimes legislation (S. 909), while the House version only relies on the Commerce Clause (H. R. 1913). Senator Edward Kennedy and Representative John Conyers, Jr. are the sponsors of these separate bills. Given the Democratic Party’s majorities in both cameras of Congress, it is very likely that a new hate crimes statute, to be codified as 18 U.S.C. § 249, will come into law.
Currently the best reconciliation bill and the one most likely to succeed with the conference committee is Senate Amendment 1511, which has not yet been posted online. That amended version of the Kennedy bill merges his original proposal with that of Conyers.
In relevant part the amendment provides penalties for anyone:
“(1) 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 person, because of the actual or perceived race color religion, or national origin of any person.” A second provision penalizes anyone, whether or not acting under the color of law, who “(2) willfully causes bodily injury to any person or, through the use of fire, a firerarm, a dangerous weapon, or any 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.”
Paragraph 1 of the proposed statute does not offer a constitutional justification for the exercise of congressional authority. That justification is found in the preliminary statement of findings, which although non-binding is crucial because it relates that the Thirteenth Amendment was adopted to curb public and private violence based on their real or perceived race, ancestry, or color. It also speaks of the continued relevance of the Thirteenth Amendment to post-ratification racist and ethnocentric violence, a topic I discussed in The Thirteenth Amendment and American Freedom. “Accordingly,” the statement of findings continues, “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.”
On the other hand, the second paragraph of the proposed statute exclusively relies on the Commerce Clause to justify the passage of a federal law criminalizing crimes based on persons’ gender, sexual orientation, disabilities, or gender identity. It describes crimes triggering the statute to include conduct using the channels, facilities or instrumentalities of interstate or foreign commerce, perpetrated by or against someone who has crossed a state line, or committed with weapons that have crossed state lines.
Passing this new law would broaden federal jurisdiction over hate crimes. Like the current federal hate crimes statute, 18 U.S.C. § 245, it would prohibit crimes meant to harm others based on their actual characteristics. Section 249 would go one step further. It would add a charge against perpetrators acting violently even when their ethnocentric perceptions were mistaken. This is a necessary addition because it recognizes the dangerousness of misdirected criminal motives such as occurred in the aftermath of 9/11 when Sikhs were attacked by persons who mistook them for Arabs.
If passed, § 249 would preserve the current cause of action for offenses based on race, color, religion, and national origin and add violent offences committed because of the victims’ gender, disability, sexual orientation, and gender identity. None of the latter groups is protected under the existing federal law. Federal Bureau of Investigation statistics bear out the need for augment current protections. The most recent data for bias motivated crimes is from 2007. As in past years, most hate crimes are racially motivated, with most being committed against blacks, next on the list are anti-religious crimes, mostly targeting Jews, immediately after that are crimes because of sexual orientation, followed by anti-social conduct based on ethnicity/national origin and national origin. The large number of chauvinistic crimes was well document during the congressional hearings that led to the promulgation of the Violence Against Women Act.
Currently, some forty-five states have hate crimes statutes, with differing causes of action and penalties. To my mind, section 249 clearly would be a positive step toward creating a more unified scheme for prosecuting crimes motivated by discriminatory animus. Besides providing a communicative statement against the abuse of protected groups, it could help deter criminality. Despite my support for the proposed law, I hope that the conference committee will improve the extant versions before Congress promulgates the final statute.
Senator Kennedy’s amended bill relies on the Thirteenth Amendment and Commerce Clause in response to decisions of the Supreme Court of the United States holdings that diminished or qualified congressional Fourteenth Amendment and Commerce Clause authority. In a states’ rights oriented decision, United States v. Morrison, the Supreme Court struck down a private cause of action for gender motivated crimes. The Court found that Congress lacked the authority to pass a statute providing for a civil suit based on its Fourteenth Amendment power unless there was a state action. Even though Congress had extensive hearings showing that gender violence had a significant impact on the national economy, the Court denied that hate crimes could be aggregated to justify the use of the Commerce Clause. A federal hate crimes law against private offenses must therefore rely on an alternative constitutional ground, one without a commerce component, to increase its breadth of coverage and to survive judicial review. One way to justify new hate crimes legislation is to require each plaintiff to demonstrate that the defendant’s specific criminal conduct had a substantial effect on interstate commerce.
If adopted in its present form, S. A. 1511 would require proof in each case demonstrating the connection between interstate commerce and the prosecuted act. Here is the text:
“(B) The circumstances described . . . are that – “(i) the conduct . . . occurs during the course of, or as the result of, the travel of the defendant or the victim – “(I) across a State line or national border; or “(II) using a channel, facility, or instrumentality of interstate or foreign commerce; “(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce . . .; “(iii) in connection with the conduct . . . the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or “(iv) the conduct . . . “(I) interferes with commercial or other economic activity ill which the victim is engaged at the time of the conduct; or “(II) otherwise affects interstate or foreign commerce.
While a court would most likely find these proscriptions to be constitutional, in its current form the proposed bill would impact a relatively small number of hate crimes. Many hate crimes occur locally, thus requiring federal prosecutors to demonstrate that each singular act had a substantial effect on the national economy will often make it too onerous to file otherwise viable charges.
Of course, any hate crime falling under i-iv will have had a substantial effect on interstate commerce, the problem is that many hate crimes don’t involve people coming across state boarders to commit them or those using channels of interstate commerce. Moreover many hate crimes don’t involve weapons that came through interstate commerce. That means that any hate crime based on gender, sexual orientation, gender identity, or disability that is committed without traveling through interstate commerce or where the object used for violence has not traveled through interstate would not qualify. So, a perpetrator who uses a hand, fist, or stick to commit a hate crime (e.g. a slap to the face or the breaking of the skull) would not be a proper party defendant under the proposed statute since none of those objects traveled through commerce. That strikes me as a problem that the Thirteenth Amendment might resolve.
The difficulty with relying on the Thirteenth Amendment is that it would require extending its reach to groups that the Court has never recognized as falling under it: namely women, gays and lesbians, transsexuals, and transvestites, and the disabled. I think the stakes of crimes committed against these groups that don’t fall under the commerce provisions of S.A. 1511 make it imperative to try to extend the amendment’s applicability. Of course, the risk of this proposal is that the Court could find the law unconstitutional. So, I make two proposals: the first more risky than the second more pragmatic.
As for the first proposal, the Thirteenth Amendment can be added as a justification for using congressional power to prohibit discrimination against all the groups listed in the proposed legislation. That would allow for the criminalization of hate crimes not involving the channels of interstate commerce.
There is Supreme Court precedent indicating that Congress has broad authority to prohibit violence pursuant to its Thirteenth Amendment enforcement authority. One decision found that the Thirteenth Amendment not only allows Congress to prohibit the “actual imposition of slavery or involuntary servitude” but also to keep the nation free by preventing the continued “badges and incidents” of slavery and involuntary servitude that exist in the United States. Griffin v. Breckenridge. See also Jones v. Alfred H. Mayer, which adopts language allowing Congress “rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”
The proposed legislation would prohibit crimes against persons of any race. While the Thirteenth Amendment was adopted to abolish black slavery it is well established that it extends “to legislat[ion] in regard to ‘every race and individual.’” McDonald v. Santa Fe Trail Transp. Co.. It is also clear from two other Supreme Court cases that the Amendment grants Congress the power to prohibit xenophobic and bigoted crimes. Saint Francis College v. Al-Khazraji and Shaare Tefila Congregation v. Cobb. While I am confident that the Thirteenth Amendment applies to Part 1 of the proposed law; caution must be used in applying it to Part 2, involving violent conduct perpetrated “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability” of the victims. The Court has not yet identified any of those groups to be covered under the Thirteenth Amendment. But there is nothing in the Amendment preventing this progressive step, and it would be similar to the extension of the Fourteenth Amendment. When the Fourteenth Amendment was first ratified leading feminists were livid, sensing that their cause had been temporarily set aside for what was called the “Negro’s Hour”. Elizabeth Cady Stanton blamed Congress for excluding women from the Fourteenth Amendment’s provisions by using the word “male” in Section 2. In the 1870s, when Francis and Virginia L. Minor and Susan B. Anthony argued that the Amendment’s guarantee of equal citizenship applies to women their argument failed to convince the nation. It took a century, into the 1970s, to gain judicial acceptance of the Fourteenth Amendment’s reach to gender discrimination. Likewise, the Thirteenth Amendment can be extended to help groups beyond those that were immediately contemplated during the initial ratification process. If I am wrong the statute will survive under the Commerce Clause provision alone pursuant to the severability section of the proposed § 249.
My second approach is much more cautious and pragmatic, and it is the one that I ultimately counsel to use for fear that the first approach would not pass judicial muster without some jurisprudential development. To allay the expected difficulty with gaining judicial recognition that the Thirteenth Amendment applies to a larger number of groups than previously acknowledged, I recommend that Congress adds one more part to the bill during the reconciliation conference. I propose that we initially try to apply the Thirteenth Amendment to cases of sexual orientation, gender, disability, or gender discriminations in the work place. Where a person is threatened with loss of work or severance of pay, the connection to the incidents of involuntary servitude is clear, irrespective of the plaintiff’s identifiable group. Let me give a couple of examples. Say someone says to a woman, “Sleep with me or I won’t pay you” and then follows through with the threat, or “All you gays have to work more hours, so get moving on cleaning the floor boy; otherwise I'm gonna kick your butt” and then commits the criminal act; then those seem to me the type of labor offenses that the Thirteenth Amendment will clearly allow Congress to prohibit (since they both involve forced labor). And in prohibiting those acts, Congress will take an initial step toward applying the amendment to groups other than race, national origin, and religion. In my forthcoming article, Interpreting the Thirteenth Amendment, I advocate this approach because it incrementally seeks to expand the number of at-risk groups covered under the amendment through a statute applicable to work setting, increasing the likelihood of surviving judicial review. Posted
by Guest Blogger [link]