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Brief of Amici Curiae Gail Heriot and Peter N. Kirsanow, Members of the U.S. Commission on Civil Rights, in Their Capacities as Private Citizens, in Support of the Reversal of Appellant's Conviction in United States v. Metcalf

42 Pages Posted: 31 Dec 2016 Last revised: 9 Jan 2017

Gail L. Heriot

University of San Diego School of Law

Peter N. Kirsanow

Independent

Date Written: December 23, 2016

Abstract

This brief argues that the section of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 that relies on the Thirteenth Amendment for its authorization is unconstitutional. Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude. Section 2 authorizes Congress to effectuate that ban. Undoubtedly, Section 2 gives Congress broad discretion in its efforts to ban slavery and to prevent its return. But it was not intended as a broad grant of power to remedy all social ills thought to be traceable to, or aggravated by, slavery. Since Congress does not even purport to be motivated by a desire to prevent slavery's return, Section 249(a)(1) is unconstitutional. Indeed, even if Congress had purported to be motivated by a desire to prevent slavery's return, Section 249(a)(1) is neither congruent and proportional nor rationally related to that aim. Note that the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (Section 249(a)(2) also contains a section that is premised on Congress's power under the Commerce Clause. That section is unaffected by this argument.

Keywords: hate crimes, 13th Amendment, Congress, badges and incidents, race, Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act

Suggested Citation

Heriot, Gail L. and Kirsanow, Peter N., Brief of Amici Curiae Gail Heriot and Peter N. Kirsanow, Members of the U.S. Commission on Civil Rights, in Their Capacities as Private Citizens, in Support of the Reversal of Appellant's Conviction in United States v. Metcalf (December 23, 2016). San Diego Legal Studies Paper No. 17-244. Available at SSRN: https://ssrn.com/abstract=2891565 or http://dx.doi.org/10.2139/ssrn.2891565

Gail L. Heriot (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Peter N. Kirsanow

Independent

No Address Available

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