Brief Amicus Curiae of Gail Heriot and Peter N. Kirsanow, Members of the United States Commission on Civil Rights, in Support of Petitioner in Randy Joe Metcalf V. United States (Cert Stage)

36 Pages Posted: 24 Jul 2018  

Gail L. Heriot

University of San Diego School of Law

Peter Kirsanow

Independent

Date Written: July 16, 2018

Abstract

This amicus curiae 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. It urges the Supreme Court to grant the Petition for Certiorari.

Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude--period. 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 conduct Petitioner was found to engage in was reprehensible. Amici note only that advocates for the Constitution’s framework of limited government do not always get to choose their allies.

The argument made in this brief applies only to Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The Act also contains a section (Section 249(a)(2)) 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

JEL Classification: K10

Suggested Citation

Heriot, Gail L. and Kirsanow, Peter, Brief Amicus Curiae of Gail Heriot and Peter N. Kirsanow, Members of the United States Commission on Civil Rights, in Support of Petitioner in Randy Joe Metcalf V. United States (Cert Stage) (July 16, 2018). San Diego Legal Studies Paper No. 18-352. Available at SSRN: https://ssrn.com/abstract=3215360

Gail L. Heriot (Contact Author)

University of San Diego School of Law ( email )

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

Peter Kirsanow

Independent

No Address Available

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