At Volokh Conspiracy, Ilya Somin comments on United States v. Cannon, a recent case in which the Fifth Circuit upheld a federal statute banning racially motivated violent crimes as a permissible exercise of Congress's power to enforce the Thirteenth Amendment (which bans slavery and involuntary servitude). He observes:
The Fifth Circuit ruling was primarily based on the Supreme Court’s ruling in Jones v. Alfred Mayer Co. (1968), which concluded that the Thirteenth Amendment gives Congress the power to ban all “badges and incidents” of slavery as well as slavery itself. Far more dubiously, it also interpreted the power to ban “badges and incidents” to include the power to forbid anything that Congress determines might be “rationally related” to those badges and incidents. By that standard, the court concluded that the federal hate crimes act must be upheld, as did a similar decision by the Tenth Circuit last year. But the Fifth Circuit ruling also quotes language in the Tenth Circuit opinion that explains why Jones’ reasoning is deeply problematic:
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.
Posted at 6:03 AM