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. 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, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (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.
Hatch and two of his friends, Paul Beebe and Jesse Sanford, worked together at a restaurant in Farmington, New Mexico. All three are white.
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
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 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.
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, ___ U.S. ___, 132 S.Ct. 2122, 182 L.Ed.2d 881 (2012).
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.
The Thirteenth Amendment prohibits slavery and involuntary servitude, while extending power to Congress to enforce its provisions:
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
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.
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 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, 3 S.Ct. 18, 27 L.Ed. 835 (1883).
"Has Congress constitutional power to make such a law?" the Supreme Court inquired. Id. at 10, 3 S.Ct. 18. 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, 3 S.Ct. 18. 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, 3 S.Ct. 18. Beyond simply "nullifying all state laws which establish or uphold slavery," the Court reasoned that the Thirteenth Amendment
Id. (emphasis added).
But "[c]an the act of a mere individual, the owner of the inn, the public conveyance, or place of amusement, refusing the
Id. at 25, 3 S.Ct. 18 (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. 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 [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
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, 27 S.Ct. 6, 51 L.Ed. 65 (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, 27 S.Ct. 6 (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, 27 S.Ct. 6. This was so, said the Court, because the Thirteenth Amendment extends its protections to all races, not just formerly enslaved races. Id. at 16-17, 27 S.Ct. 6.
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, 27 S.Ct. 6. 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, 27 S.Ct. 6 (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, 27 S.Ct. 6 (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, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (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, 88 S.Ct. 2186. 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 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, 88 S.Ct. 2186. 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, 88 S.Ct. 2186.
As to the question of whether Section 2 of the Thirteenth Amendment authorized
"Surely Senator Trumbull was right," the Court concluded. "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." 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, 88 S.Ct. 2186. 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, 88 S.Ct. 2186.
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.
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:
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:
Id. note (reprinting Pub.L. No. 111-84, § 4702(7) (2009)).
The second offense defined in § 249 has a similar character, but protects more
Id. § 249(a)(2).
That provision is not before us in this appeal.
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, 88 S.Ct. 2186. Thus, under Jones, if Congress rationally determines that something is a badge or incident of 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.
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 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.
But because the three Reconstruction Amendments "disclose[] a unity of purpose," Slaughter-House Cases, 83 U.S. 36, 67, 16 Wall. 36, 21 L.Ed. 394 (1872), Hatch proposes that a Fourteenth Amendment case — City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith had abrogated much of the Supreme Court's earlier jurisprudence regarding whether a neutral law of general application nonetheless impermissibly burdened 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, 110 S.Ct. 1595. 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, 110 S.Ct. 1595.
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, 117 S.Ct. 2157. 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, 117 S.Ct. 2157 (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, 117 S.Ct. 2157. The Court found an example of congruence and proportionality in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (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
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, 117 S.Ct. 2157. "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 concern with ensuring that the Fourteenth Amendment did not grant general police power to the national government. Id. at 520-24, 117 S.Ct. 2157.
Similar concerns underlay two Commerce Clause cases on which Hatch also relies, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (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, 115 S.Ct. 1624. The Court therefore struck it down as an impermissible attempt to exercise "general federal police power." Id. at 564, 115 S.Ct. 1624.
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, 120 S.Ct. 1740 (internal quotation marks omitted). This remedy, although civil in nature, "cover[ed] a wide swath of criminal conduct." Id. at 606, 120 S.Ct. 1740. 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, 120 S.Ct. 1740. "Indeed," 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, 120 S.Ct. 1740. The Court accordingly concluded that VAWA's civil remedy exceeded Congress's powers under the Commerce Clause.
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
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 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, 117 S.Ct. 2157. And many legal scholars have encouraged broad use of Section 2 power in essentially this way,
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.
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.
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 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, 107 S.Ct. 2022, 95 L.Ed.2d 582 (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, 107 S.Ct. 2019, 95 L.Ed.2d 594 (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.
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 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 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.
Hatch also challenges the Hate Crimes Act's requirement that the Attorney General certify any prosecution under the Act:
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 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).
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.
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:
203 U.S. at 16-17, 27 S.Ct. 6. Jones overruled Hodges to some extent, see Jones, 392 U.S. at 441 n. 78, 88 S.Ct. 2186, 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, 96 S.Ct. 2574, 49 L.Ed.2d 493 (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
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.
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.
