Gail L. Heriot (University of San Diego School of Law) and Alison Somin (Independent) have posted Sleeping Giant?: Section Two of the Thirteenth Amendment, Hate Crimes Legislation, and Academia's Favorite New Vehicle for the Expansion of Federal Power (Engage, Volume 13, Issue 3) on SSRN. Here is the abstract:
This article examines Congress’s authority to enact legislation pursuant to its powers under Section Two of the Thirteenth Amendment, which prohibits slavery and involuntary servitude. Does that power enable Congress enact 18 U.S.C. § 249(1), which criminalizes certain violent crimes committed “because of the actual or perceived race, color, religion or national origin” of the victim or of some other person? Or must Congress’s authority to pass such legislation derive from some other part of the Constitution?
It's not my area, but my sense (confirmed by this paper) is that Thirteenth Amendment arguments have gone far beyond any plausible original meaning, and a surprising number of statutes and actual prosecutions are support only by this dubious extension. If the Court wanted to give a boost to federalism without much practical downside (since these crimes are all crimes under state law as well), this might be a place to consider.
Posted at 6:51 AM