# United States v. Jordan Leahy

> Court of Appeals for the Eleventh Circuit · September 25, 2025

URL: https://www.frixlaw.com/law-library/cases/11144358

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** September 25, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## How later opinions describe it (automated extraction)

- noting that Justice Swayne’s decision departed from the court of appeals in Kentucky

## Opinion text

USCA11 Case: 22-13822 Document: 58-1 Date Filed: 09/25/2025 Page: 1 of 92

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13822
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

JORDAN PATRICK LEAHY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cr-00156-KKM-MRM-1
____________________

Before ROSENBAUM, NEWSOM, and ABUDU, Circuit Judges.
ROSENBAUM, Circuit Judge:
Americans ratified the Thirteenth Amendment in 1865.
That amendment abolishes all forms of slavery and involuntary ser-
vitude within the United States, except as punishment for a crime.
U.S. CONST. amend. XIII. But that’s not all. Under Section 2 of the
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2 Opinion of the Court 22-13822

Thirteenth Amendment, we also gave Congress the “power to en-
force [the Thirteenth Amendment] by appropriate legislation.” Id.,
§ 2. The Supreme Court has consistently recognized that this pro-
vision allows Congress to legislate against any activity it “ration-
ally . . . determine[s]” to be a “badge[] or . . . incident[] of slavery.”
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968).
And Congress used its Section 2 authority to enact
18 U.S.C. § 245 a little over a hundred years after the Nation ratified
the Thirteenth Amendment. Section 245 targets racial violence
that interferes with federally protected activities. As relevant here,
§ 245(b)(2)(B) makes it a federal crime for anyone, “by force or
threat of force,” to “willfully . . . attempt[] to injure, intimidate, or
interfere with . . . any person because of his race . . . and because
he is . . . enjoying any . . . facility” that a state or local government
administers.
A jury convicted Defendant Jordan Leahy of violating this
law. The evidence at trial showed that Leahy, a white man, used his
car to terrorize a Black family—J.T., his four-year-old daughter, and
his girlfriend. Leahy repeatedly tried to run their car off a county
road while he yelled racial slurs and made a gun-shooting gesture.
When he finally stopped at a red light, Leahy jumped out of his car
and went after J.T. on foot. Then, when the police arrived, Leahy
told them, “[T]hese guys [Black people] are animals, you know
what I’m saying? Y’all have to maintain these people, keep them in
their—in their areas.”
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22-13822 Opinion of the Court 3

On appeal, Leahy asks us to strike down § 245(b)(2)(B) as ex-
ceeding Congress’s power under the Thirteenth Amendment. We
won’t do that. Section 245(b)(2)(B) falls well within Congress’s au-
thority under the Thirteenth Amendment. Leahy also raises other
arguments. We find no merit in them, either. The district court
committed no error in how it instructed the jury. And the evidence
at trial more than sufficiently allowed a reasonable jury to conclude
that Leahy willfully attempted to injure, intimidate, and interfere
with J.T. and his family because they are Black and used a county
road.
So we affirm Leahy’s conviction.
I. BACKGROUND

A. Factual Background

J.T. is a Black man. On a Sunday night in August 2021, he
went to a birthday dinner in Palm Harbor, Florida with his four-
year-old daughter and his girlfriend. After dinner, he drove them
all southward down County Road 1 (“CR 1”) to his girlfriend’s
apartment in Seminole.
Closer to the apartment, CR 1 turns into Starkey Road.
Starkey Road is a public road that Pinellas County, Florida, admin-
isters and maintains. Where the incident here occurred, Starkey
Road has two lanes traveling in each direction, with about a five-
foot-wide, one-foot-tall median. And on that Sunday night at 10:00
p.m., the road was largely empty.
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J.T. drove in the left lane heading south. About a quarter
mile past the intersection of Starkey and Ulmerton Roads, he no-
ticed a car come out of a driveaway into the right lane and pull up
next to him on his passenger side. J.T. had never seen this car or
the driver, Defendant Jordan Leahy, before. But J.T. noticed Leahy
because Leahy was hanging out his window, yelling and gesturing
at J.T.’s car.
J.T. thought the man was pointing to J.T.’s tire and trying to
warn him of an impending flat tire. So J.T. rolled down the front
passenger window. But Leahy wasn’t trying to help J.T. Rather, he
was incessantly screaming, “[F]*** you n*****.” When J.T. realized
that Leahy was gesturing as if his fingers were a gun shooting at
J.T.’s family, J.T. rolled his window back up and tried to ignore this
“hateful and angry” man.
But Leahy would not be ignored. In response to J.T.’s efforts
to avoid confrontation, Leahy first used his car to try to push J.T.’s
car off the road and into the median. So J.T. sped up to avoid a
collision on his passenger side where his girlfriend and his daughter
sat.
Then Leahy moved to the left lane behind J.T.—driving so
close to J.T.’s bumper that J.T. couldn’t see Leahy’s headlights. J.T.
wanted to avoid an impact, which he feared might cause his car to
spin out of his control. So he sped up even more.1

1 At this point, Starkey Road moved from two lanes to three lanes to accom-

modate a left-turning lane.
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Undeterred, Leahy again tried to push J.T.’s car into the me-
dian. And again, J.T. sped up. But this time, Leahy hit the passenger
side of J.T.’s car before speeding away. Both J.T. and his girlfriend
felt and heard the crash.
Leahy had escalated the situation so quickly—in about a
mile and a half as they drove—that it hadn’t occurred to J.T. to call
the police. But as Leahy pulled in front as the two cars approached
the next traffic light, J.T. drove up close enough to the bumper to
try to get a picture of the license plate for a later police report. J.T.
thought the episode was over and Leahy would just blow through
the light.
But J.T. was wrong. Leahy stopped at the traffic light. So
J.T. quickly took a picture of the license plate.
As J.T. snapped the photo, Leahy got out of his car. Based
on his many years of training officers in the military and working
as a personal trainer and fight coach, J.T. realized that Leahy was
coming after him. Concerned for the safety of his daughter and
girlfriend, J.T. got out of his car to draw Leahy and any guns he
might be carrying away from them. He told his girlfriend to lock
the doors and call the police.
The two men walked towards each other. Leahy was yelling,
“[F]*** you, n*****” again and again. And when the two got close
enough, Leahy started swinging at J.T. J.T. dodged Leahy’s hands
and hit him twice. Then J.T. subdued Leahy by briefly putting him
in a chokehold and holding him on the ground until the police ar-
rived. While on the ground, Leahy, smelling of alcohol, passed out
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briefly but woke up to vomit. J.T. initially refused to let go, so
Leahy told him, “[Y]ou got me, my bad, bro, my bad, . . . . I don’t
want to go to jail.” Then J.T. let Leahy up and held him against
Leahy’s car until the police arrived.
A witness, Michael Sandbrook, watched J.T. calmly restrain
Leahy and asked if J.T. needed any assistance. Other bystanders
were yelling and calling 911, so Sandbrook recorded what was hap-
pening on his cell phone.
The police arrived a few minutes later. They found Leahy
drunk, “agitated,” and “angry.” Leahy told the police that J.T. had
pulled him out of his car and beat him up. But no physical evidence
supported Leahy’s story. And witnesses and other evidence ex-
posed Leahy’s lies.
Still, Leahy insisted that J.T. “choked [him] for no reason”
and that J.T. “started attacking [him] like some random, like, like
criminal . . . You know, negro . . . .” Leahy told the officers, “[T]hese
guys [Black people] are animals, you know what I’m saying? Y’all
have to maintain these people, keep them in their—in their areas.”
Leahy even claimed that he was a victim of a hate crime because
he is white. And when it became clear that the officers didn’t be-
lieve him, he told them, “They’re gonna let this monkey f******
beat up on this f****** suburban white kid. That’s crazy. Man
that, what happened to America bro? Ya’ll let the f***** mother
f****** from the ghetto beat up on the white suburban kid. What?
That’s crazy.” The officers arrested Leahy at the scene.
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At the Florida Highway Patrol office, Leahy complained that
the officers were sending a “suburban a**, sheltered a** white kid”
to jail to be “[s]urrounded by ghetto a** n******, crack deal-
ers . . . .” And he admitted that he was “[a]lways manipulating
s*** . . . doing whatever the f*** [he] want[ed][,] [a]lways act[ing]
like the nice a** little white kid[, and] [m]anipulating the f*** outta
people.”
Leahy’s ex-girlfriend, Gabriella Bolt, later testified that
Leahy’s words and behavior were typical for him. He often spoke
to her about wanting to attack Black people—whom he called
n******—he saw in public places like the mall and the bus stop.
B. Procedural Background

A grand jury in the Middle District of Florida charged Leahy
with two counts of interfering with federally protected activities,
in violation of 18 U.S.C. § 245(b)(2)(B). Count One alleged that
Leahy used force and a dangerous weapon to willfully intimidate
and interfere, and attempt to injure, intimidate, and interfere, with
J.T. because of his race and because he “was enjoying a facility pro-
vided and administered by the State of Florida and its subdivision,
that is, Starkey Road.” Count Two charged that Leahy used force
to willfully attempt to injure, intimidate, and interfere with J.T. for
the same two reasons.
Leahy filed two motions to dismiss the indictment. In his
first motion, he challenged the constitutionality of 18 U.S.C.
§ 245(b)(2)(B). Leahy argued that in passing § 245(b)(2)(B), Con-
gress exceeded its authority under the Thirteenth Amendment and
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8 Opinion of the Court 22-13822

the Commerce Clause. In his second motion to dismiss, Leahy as-
serted that the indictment alleged a single offense in two counts in
violation of the Double Jeopardy Clause of the Fifth Amendment.
The district court denied both motions.
Shortly before trial, the Government filed proposed jury in-
structions. As to the fourth element for both counts, the Govern-
ment requested the following instruction: “For you to find that the
Defendant acted ‘because of ’ J.T.’s use of a public facility, you must
find that the Defendant would not have acted as he did, but-for J.T.’s
use of that facility.”
Leahy objected to this proposed instruction. He asserted
that the but-for causation standard is contrary to law. Leahy based
his argument on his reading of United States v. Nelson, 277 F.3d 164
(2d Cir. 2002). In Nelson, Leahy said, the Second Circuit determined
that § 245(b)(2)(B)’s constitutionality depends on a specific-intent
standard. And Leahy contended that the Government should be
judicially estopped from asking for a but-for causation standard be-
cause the Government relied on Nelson in its opposition to his mo-
tion to dismiss the indictment.
Instead of the Government’s proposed instruction, Leahy
suggested that the district court instruct the jury that the Govern-
ment needed to prove that he intended to retaliate against J.T. for,
or dissuade him from, using Starkey Road. The district court re-
jected Leahy’s arguments and instructed the jury on the but-for
causation standard.
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The case proceeded to trial. Prosecutors called 10 witnesses.
These witnesses included J.T., his girlfriend, Bolt, Sandbrook, a Pi-
nellas County Public Works employee (to discuss Starkey Road),
and five members of law enforcement. Leahy didn’t present a de-
fense case.
At the close of the Government’s case, Leahy moved for a
judgment of acquittal under Rule 29 of the Federal Rules of Crim-
inal Procedure. He renewed his argument that the Government
needed to prove that he acted with “a specific intent . . . to punish
or prevent or dissuade [J.T.] from using” Starkey Road. And in the
alternative, he asserted that the Government failed to produce
enough evidence for a reasonable jury to conclude that he would
not have acted as he did “but for” J.T.’s use of Starkey Road.
The Government opposed Leahy’s motion. It directed the
district court’s attention to Nelson and to United States v. Ebens, 800
F.2d 1422 (6th Cir. 1986), overruled in part by Huddelston v. United
States, 485 U.S. 681 (1988), to support the sufficiency of the evi-
dence it had presented. The district court rejected Leahy’s motion.
Still, the court remarked, “It’s not a real, real strong case, but I think
it’s sufficient to [go to] the jury . . . . I think the Government has
put enough out there for the jury to conclude that [J.T.’s use of
Starkey Road] . . . was the reason for [Leahy’s actions].” The district
court found most compelling the Government’s evidence that
Leahy admitted he “wanted to keep them, referring to [Black peo-
ple], in their area, which . . . the result of that would be they
wouldn’t be using Starkey Road.”
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During the charge conference later that day, the Govern-
ment asked the district court to instruct the jury that the prosecu-
tion needed to prove that J.T.’s use of a public facility—as opposed
to his use of Starkey Road in particular—was a but-for cause of
Leahy’s conduct. Leahy objected. He asserted that the Govern-
ment’s proposed instruction would work “a constructive amend-
ment to the indictment.” But before he could explain his objection
any further, the district court denied the Government’s request.
Although the court agreed with the Government’s interpretation,
the district court decided to hold the Government to the language
in the indictment. Plus, the court remarked, the Government “ad-
equately” addressed the issue in its rebuttal argument in closing.
For his part, Leahy requested a theory-of-defense instruction
focused on the intention to prevent J.T. from using Starkey Road in
particular:
It is the Defense’s theory that [Leahy]
would have behaved in the same way he
did on the night in question even if J.T.
had not used Starkey Road. If you find
that the Government has failed to prove
beyond a reasonable doubt that [Leahy]
acted “because of ” J.T.’s use of Starkey
Road – that is, that he would not have
acted as he did in the absence of J.T.’s
use of Starkey Road – then you must
find [Leahy] not guilty.
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The district court declined. It saw Leahy’s request as an attempt to
change its prior ruling rejecting a specific-intent requirement. And
in fact, Leahy conceded that he was still advancing his specific-in-
tent request under the new label. So the district court remarked
that Leahy was “trying to get in through the back door what [he]
couldn’t get through the front door.” And it reasoned that “putting
the label theory of defense in there does not change what the law
is and how you define this fourth element.”
The next morning, the district court charged the jury. The
court instructed the jury that, to find Leahy acted “because of ”
J.T.’s use of a public facility, it needed to “find that [Leahy] would
not have acted as he did, but-for J.T.’s use of that facility.” The dis-
trict court further explained, “J.T.’s use of a public facility need not
be the only cause for [Leahy’s] action. Thus, you may find this ele-
ment is satisfied even if [Leahy] had additional reasons for his ac-
tions as long as you find that [Leahy] would not have acted as he
did in the absence of J.T.’s use of that facility.”
The jury deliberated for two days. During deliberations, the
jury asked the district court four questions. The jury’s second note,
at 9:17 a.m. on the second day of deliberations, reported, “We are
not unanimous on count one. Do we proceed w[ith] count two?”
The district court answered “yes” and directed the jury to “con-
tinue [its] deliberations.”
Less than an hour later, the jury submitted a third note. This
note said, “We are not unanimous on neither count one or count
two. Please advise. Thank you.” In response, and with agreement
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12 Opinion of the Court 22-13822

from the parties, the district court gave the jury a modified Allen2
charge, directing the jury to continue its deliberations.
Thirty minutes later, the jury asked its final question: “Does
the fact that both parties were on road at the same time suffice Part
4 of [the] charges?” The Government suggested that the district
court “just . . . refer them to the jury instructions,” and the district
court agreed that the question didn’t “sound like one [it could] an-
swer.”
But Leahy asked the district court to instruct the jury “no.”
He argued that “the fact that they [were] both on the road” wasn’t
on its own “sufficient to prove beyond a reasonable doubt element
four.” The district court declined to answer the question directly
because it interpreted the jury’s question as “asking [the court] to
answer what they have been asked to answer.” So the district court
responded to the jury, “[T]his particular question, as phrased, we
cannot answer; however, if you are able to formulate a different or
more detailed question on this point, we can take a look at it and
see if we can answer that question. But the one that you have
phrased here, we cannot answer.” The jury didn’t ask any other
questions.
About 30 minutes later, the jury returned its verdict. It
found Leahy guilty as to count one and not guilty as to count two.
Leahy timely filed a motion for a new trial under Rule 33 of
the Federal Rules of Criminal Procedure. He raised three grounds

2 Allen v. United States, 164 U.S. 492 (1896).
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22-13822 Opinion of the Court 13

for this relief: he asserted that (1) the Government “presented no
evidence whatsoever that [he] was exclusively seeking out victims
on Starkey Road”; (2) the district court didn’t instruct the jury on
his theory of defense; and (3) the district court “declined to answer
the jury’s question” even though the jury “proposed a fact pattern”
that “was legally insufficient to prove [his] guilt under any compet-
ing understanding of the law” and his proposed instruction “would
have helped to clear that up.” Leahy argued that these alleged er-
rors “[c]onsidered alone or together” merited a new trial.
The district court denied the Rule 33 motion. First, it ex-
plained that Leahy’s actions and his statements about keeping Black
people “in their areas” were sufficient for a reasonable jury to con-
vict him. Second, the court characterized Leahy’s theory-of-de-
fense instruction as “inconsistent,” “confusing,” and “a misstate-
ment of the law.” And third, the court reasoned that its response
to the fourth jury question “was appropriate” based on “the specific
wording” of the question. The district court also denied Leahy’s
motion for reconsideration of its order denying the Rule 33 mo-
tion.
At Leahy’s sentencing hearing, the district court sentenced
Leahy to 24 months in prison and 36 months of supervised release.
II. DISCUSSION

Leahy challenges his conviction in three ways. First, he ar-
gues Congress’s enactment of § 245(b)(2)(B) exceeded its power un-
der the Thirteenth Amendment. Second, he contends the district
court abused its discretion when it instructed the jury and declined
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to answer the jury’s fourth question. And third, Leahy urges that
the district court should have granted his motions for judgment of
acquittal and a new trial. After careful review of the record and the
briefs, and with the benefit of oral argument, we find no error, so
we affirm Leahy’s conviction. We address each of his arguments
in turn.
A. Section 245(b)(2)(B) is constitutional under the
Thirteenth Amendment.

Leahy first asks us to dismiss the indictment against him be-
cause he says § 245(b)(2)(B) is an unconstitutional exercise of con-
gressional authority under the Thirteenth Amendment. He chal-
lenges the statute both facially and as applied to him.
Ordinarily, we review a district court’s denial of a motion to
dismiss an indictment for abuse of discretion. United States v. Focia,
869 F.3d 1269, 1284 n.9 (11th Cir. 2017) (citing United States v. Di
Pietro, 615 F.3d 1369, 1370 n.1 (11th Cir. 2010)). But because Leahy’s
motion challenged the constitutionality of a statute, we review de
novo the district court’s interpretation of the statute. Id. (citing Di
Pietro, 615 F.3d at 1370 n.1).
A defendant challenging the constitutionality of a statute on
its face bears a “heavy burden.” Horton v. City of St. Augustine, 272
F.3d 1318, 1329 (11th Cir. 2001) (quoting United States v. Salerno, 481
U.S. 739, 745 (1987)). He must “establish that no set of circum-
stances exists under which the Act would be valid.” United States v.
Rahimi, 602 U.S. 680, 693 (2024) (quoting Salerno, 481 U.S. at 745);
Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (explaining that the
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22-13822 Opinion of the Court 15

defendant must show that the law “is unconstitutional in all its ap-
plications”). To resist this challenge, the Government need show
only that the law is constitutional in at least “some of its applica-
tions”—for instance, “as applied” to the defendant. Rahimi, 602
U.S. at 693. Put simply, a facial attack is “the most difficult challenge
to mount successfully.” Horton, 272 F.3d at 1329 (quoting Salerno,
481 U.S. at 745). And Leahy doesn’t do so.
To explain, we start with the text of the Thirteenth Amend-
ment. The Thirteenth Amendment provides, “Neither slavery nor
involuntary servitude, except as a punishment for a crime whereof
the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.” U.S.
CONST. amend. XIII, § 1. It also grants Congress the “power to
enforce [the amendment] by appropriate legislation.” Id., § 2.
The bounds of Congress’s authority to enforce the Thir-
teenth Amendment are well established. For over fifty years now,
when we have addressed challenges to Congress’s authority under
Section 2 of the Thirteenth Amendment, we have been “guid[ed]
by the decision of the United States Supreme Court in Jones v. [Al-
fred H.] Mayer Co. . . . .” United States v. Bob Lawrence Realty, Inc., 474
F.2d 115, 120 (5th Cir. 1973). 3

3 “[T]he decisions of the United States Court of Appeals for the Fifth Circuit

(the ‘former Fifth’ or the ‘old Fifth’) as that court existed on September 30,
1981, handed down by that court prior to the close of business on that date,
[are] binding as precedent in the Eleventh Circuit.” Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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In Jones, home sellers turned away a Black prospective home
buyer “for the sole reason” that the buyer was Black. Jones, 392 U.S.
at 412. The buyer sued under 42 U.S.C. § 1982. That statute pro-
vides 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.” Id. (quoting 42 U.S.C. § 1982). The Court con-
cluded that Congress had enacted § 1982 under its “power to en-
force [the Thirteenth Amendment] by appropriate legislation.” Id.
at 437–38.
In evaluating the constitutionality of § 1982, the Court ex-
plained that “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 determina-
tion into effective legislation.” Id. at 440. Applying this framework,
the Supreme Court held that Congress acted constitutionally in ex-
ercising its Section 2 authority to ban racial discrimination in the
sale of property because Congress rationally determined that this
form of discrimination was “a relic of slavery.” Id. at 440–43. As a
result, we have “give[n] great deference, as indeed [we] must, to the
congressional determination that [legislation] will effectuate the
purpose of the Thirteenth Amendment by aiding in the elimina-
tion of the ‘badges and incidents of slavery in the United States.’”
Bob Lawrence Realty, Inc., 474 F.2d at 120 (quoting Jones, 392 U.S. at
439).
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The Supreme Court has consistently reaffirmed its decision
in Jones and its rational-determination framework to govern the use
of Congress’s Thirteenth Amendment power. See, e.g., Runyon v.
McCrary, 427 U.S. 160, 179 (1976); Griffin v. Breckenridge, 403 U.S. 88,
105 (1971); see also Patterson v. McLean Credit Union, 491 U.S. 164, 172
(1989) (reaffirming Runyon); id. at 197 (Brennan, J. concurring in
part) (explaining that Congress may “identify and legislate against
the badges and incidents of slavery”).
And so, adopting “the prevailing view among courts,” as
Leahy describes it, we have repeatedly reaffirmed that Jones applies
to our review of Thirteenth Amendment legislation. See NAACP v.
Hunt, 891 F.2d 1555, 1564 (11th Cir. 1990); Arnold v. Bd. of Educ. of
Escambia Cnty., 880 F.2d 305, 315 (11th Cir. 1989); Bob Lawrence Re-
alty, Inc., 474 F.2d at 120; see also, e.g., United States v. Diins, 36 F.4th
302 (1st Cir. 2022); United States v. Roof, 10 F.4th 314 (4th Cir. 2021).
So as the Supreme Court instructs us to do, we use Jones’s
framework to assess the constitutionality of § 245(b)(2)(B). As rel-
evant here, § 245(b)(2)(B) makes it a federal crime for any individual
to “willfully injure[], intimidate[,] or interfere[] with” another “per-
son because of his race . . . because he is or has been . . . participat-
ing in or enjoying any . . . facility . . . provided or administered by
any State or subdivision thereof.” 18 U.S.C. § 245(b)(2)(B).
Leahy was convicted of violating this law by violently ob-
structing J.T.’s use of Starkey Road because of J.T.’s race. Under
Jones, we must consider whether Congress rationally determined
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18 Opinion of the Court 22-13822

that violent interference with the use of a public road because of
race constitutes a badge or incident of slavery.
This is an easy one. We hold that Congress did.
To help assess whether Congress lawfully exercised an enu-
merated power—namely its authority under Section 2 of the Thir-
teenth Amendment—we look at the problem congressmembers
understood themselves to be confronting when they enacted the
challenged law.4 As the plain text of 18 U.S.C. § 245 reflects, Con-
gressional leaders advocated for § 245 to stop racial violence that
intimidated people from using public services. 18 U.S.C. § 245; see
also S. REP. NO. 90-721, at 3 (1968) (noting Congress’s intentions “to
deter and punish interference by force or threat of force with activ-
ities protected by Federal law or the Constitution and specifically

4 In doing so, we consider any findings or descriptions of the problem in the

legislative history, like we do when we evaluate Congress’s exercise of its
other powers. Cf. United States v. Lopez, 514 U.S. 549, 562 (1995) (“[A]s part of
our independent evaluation of constitutionality under the Commerce Clause
we of course consider legislative findings, and indeed even congressional com-
mittee findings . . . .”); United States v. Morrison, 529 U.S. 598, 612 (2000)
(“While ‘Congress normally is not required to make formal findings as to the
substantial burdens that an activity has on interstate commerce,’ the existence
of such findings may ‘enable us to evaluate the legislative judgment that the
activity in question substantially affect[s] interstate commerce, even though
no such substantial effect [is] visible to the naked eye.’” (internal citation omit-
ted) (alterations in original) (quoting Lopez, 514 U.S. at 562–63)). They help us
discern whether Congress made a “rational determination” in targeting the
conduct prohibited under the plain text of the statute as a “badge or incident
of slavery.” But we are not drawing on this legislative history to interpret the
scope of the act itself.
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22-13822 Opinion of the Court 19

set out in the bill” and “to strengthen the capability of the Federal
Government to meet the problem of violent interference, for racial
or other discriminatory reasons, with a person’s free exercise of
civil rights”); H.R. REP. NO. 90-473, at 3 (1968) (same). The law
applies to only those activities identified in the statute, including as
relevant here, “participating in or enjoying any benefit of . . . fa-
cilit[ies]” of state or local governments. 18 U.S.C. § 245(b)(2)(B).
The Senate Committee Report paints the historical picture
in 1968, when Congress enacted § 245:
[A] small minority of lawbreakers has
resorted to violence in an effort to bar
Negroes from exercising their lawful
rights. Brutal crimes have been commit-
ted not only against Negroes exercising
Federal rights but also against whites
who have tried to help Negroes seeking
to exercise these rights. Acts of racial
terrorism have sometimes gone unpun-
ished and have too often deterred the
free exercise of constitutional and statu-
tory rights.
Such acts of violence have occurred in
retaliation against Negroes who have
exercised or sought to exercise their civil
rights. In some cases, violence has been
used against Negroes who have not
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20 Opinion of the Court 22-13822

engaged in any civil rights activities in
order generally to intimidate and deter
all Negroes in the exercise of their
rights. White and Negro civil rights
workers have also been victimized.
S. REP. NO. 90-721, at 4. Put succinctly, Black Americans had been
deprived of their fundamental rights by widespread violence.
Making matters worse, “[i]n some places, . . . local officials
either ha[d] been unable or unwilling to solve and prosecute crimes
of racial violence or to obtain convictions in such cases.” Id. And
that created a “need for Federal action to compensate for the lack
of effective prosecution on the local level.” Id. In other words,
states were allowing a de facto system of racial subjugation to per-
sist.
Violence on public roads, specifically, was a real problem.
Just two years before Congress passed § 245, in United States v. Guest,
383 U.S. 745 (1966), the federal government indicted a man for
shooting a Black man “while he was driving through the State of
Georgia.” S. REP. NO. 90-721, at 5; see also H.R. REP. NO. 90-473, at
4 (discussing Guest). That case raised concerns for deficiencies in
existing law, namely the lack of penalties for “private individuals,”
not state actors, who engage in “racially motivated acts of vio-
lence . . . against persons exercising [their] rights.” H.R. REP. NO.
90-473, at 4; see also S. REP. NO. 90-721, at 5.
We assess whether Congress’s identified conduct—specifi-
cally in this case, racial violence interfering with public roads—
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22-13822 Opinion of the Court 21

rationally qualifies as a “badge or incident of slavery.” 5 This is not
a close question. We are certain that the Framers understood in-
terference with travel on public roads because of race to be a cen-
tral badge of slavery.

To begin, the slave codes that predated the Thirteenth
Amendment uniformly restricted the ability of Black slaves to
travel. Alexander Tsesis, Enforcement of the Reconstruction Amend-
ments, 78 WASH. & LEE L. REV. 849, 869–70 & n.112 (2021) (citing
KENNETH M. STAMP, THE PECULIAR INSTITUTION: SLAVERY IN THE
ANTE-BELLUM SOUTH 192–236 (1956)). Measures included a pass
system to restrict slaves’ ability to move about freely. Justin S.
Conroy, “Show Me Your Papers”: Race and Street Encounters, 19 NAT’L

5 In advancing the bill that would become § 245(b)(2)(B), the relevant congres-

sional committees cited Congress’s Article I, Section 8, powers and the Four-
teenth and Fifteenth Amendments (but not the Thirteenth Amendment) for
Congress’s authority to enact the legislation. See S. REP. NO. 90-721, at 6–7;
H.R. REP. NO. 90-473, at 4–7. We don’t decide if § 245(b)(2)(B) is a lawful ex-
ercise of any of Congress’s powers other than Section 2 of the Thirteenth
Amendment. But even if we thought Congress failed to cite the correct au-
thority for this legislation—to be clear, we don’t express an opinion on that
issue—we can’t strike down a law “because Congress used the wrong la-
bels . . . if the Constitution permits Congress to do exactly what” it did. Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 569 (2012); see also Woods v. Cloyd
W. Miller Co., 333 U.S. 138, 144 (1948) (The “question of the constitutionality
of action taken by Congress does not depend on recitals of the power which it
undertakes to exercise.”). And we note that, as a formal matter, Congress
didn’t expressly rely on any constitutional power in the text of the statute. See
18 U.S.C. § 245; Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005) (Congress’s “authoritative statement is the statutory text, not the legis-
lative history or any other extrinsic material.”).
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22 Opinion of the Court 22-13822

BLACK L.J. 149, 151 (2007) (explaining that “no slaves were to leave
their masters’ premises at any time unless in company with whites
or when wearing servants’ livery or carrying written passes”) (quot-
ing ULRICH BONNELL PHILLIPS, AMERICAN NEGRO SLAVERY 491
(1918)).
Several states imposed these codes. Virginia’s 1680 slave
code forbade any “Negro or slave . . . from [leaving] his owner’s
plantation without certificate and then only on necessary occa-
sions.” Id. (quoting A. LEON HIGGINBOTHAM, JR., IN THE MATTER
OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 38 (1978) (al-
teration in original)). In Maryland, a 1676 law prohibited slaves
from traveling more than 10 miles from their owners’ homes with-
out a written note, and later laws required that free Black Ameri-
cans bear the burden of proof to show that they weren’t slaves and
therefore could travel. Id. at 153 (citing JEFFREY R. BRACKETT, THE
NEGRO IN MARYLAND 37 (1969)). South Carolina enacted a series
of laws in 1712 that established a pass system for any slave who
sought to go beyond his owner’s property. Id. at 151–52 (citing HIG-
GINBOTHAM, IN THE MATTER OF COLOR: RACE AND THE AMERICAN
LEGAL PROCESS, supra, at 157, 168, 170). We have no trouble con-
cluding that the inability to travel constitutes a badge of slavery.
And this badge of slavery came with considerable violence.
South Carolina allowed white captors to “‘beat, maim or assault’
[their] charge[s] [and] if the slave refused to show his ticket and
could not be apprehended alive, he could be killed with impunity.”
Id at 152. (last alteration in original) (quoting HIGGINBOTHAM, IN
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22-13822 Opinion of the Court 23

THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS,
supra, at 171). In Pennsylvania, as early as 1693, any Black person
“could be stopped on the street and imprisoned by any magistrate
or citizen if the [Black person] did not hold a ticket from his mas-
ter.” Id. at 153 (quoting HIGGINBOTHAM, IN THE MATTER OF
COLOR: RACE AND THE AMERICAN LEGAL PROCESS, supra, at 307). A
1725–26 Pennsylvania law empowered white captors to whip Black
runaway slaves if they were found more than 10 miles from their
owner’s home. Id. at 152 & n.19 (citing HIGGINBOTHAM, IN THE
MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS, su-
pra, at 287). And in West Baton Rouge, local ordinances allowed
white citizens to arrest Black people on the street and whip any
slaves traveling without passes. Id. at 153 (citing PHILLIPS, AMERI-
CAN NEGRO SLAVERY, supra, at 498).

The Congress that passed the Thirteenth Amendment un-
derstood this form of violence to be at the heart of slavery. For
example, during discussion of the amendment while Congress
awaited its ratification, Senator John Sherman highlighted that Sec-
tion 2 empowered Congress to “secure[] the right of a citizen to
travel wherever he chose within the limits of the United States,”
which states had denied. CONG. GLOBE, 39th Cong., 1st Sess. 41
(1865) (statement of Sen. Sherman). And during passage of the
Civil Rights Act of 1866, Senator Lyman Trumbull emphasized re-
strictions on movement as a badge of slavery. See CONG. GLOBE,
39th Cong., 1st Sess. 1759 (noting the need to protect freeman who
could be “whipped if caught away from home” under state law).
The 1866 Act dismantled the Black Codes, which enforced badges
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24 Opinion of the Court 22-13822

and incidents of slavery such as the “control[] [of ] the movement
of [Black people] by systems of passes . . . .” Goodman v. Lukens Steel
Co., 482 U.S. 656, 672 (1987) (Brennan, J., concurring in part & dis-
senting in part), superseded on other grounds by 28 U.S.C. § 1658.
So it’s not surprising that all three of our sister circuits that
have considered this issue have also found § 245(b)(2)(B) lawful un-
der Jones. See United States v. Allen, 341 F.3d 870, 883–84 (9th Cir.
2003); Nelson, 277 F.3d at 173–91; United States v. Bledsoe, 728 F.2d
1094, 1097 (8th Cir. 1984).
In fact, the Supreme Court itself has suggested that violence
on public roads is a badge of slavery. For example, in Griffin v.
Breckenridge, the Court held that Congress could legislate under the
Thirteenth Amendment against “conspiratorial, racially discrimi-
natory private action” that blocked travel on interstate highways.
See 403 U.S. at 105–06.
And contrary to Leahy’s suggestion, § 245(b)(2)(B)’s consti-
tutionality does not depend on whether the defendant specifically
intended to interfere with the use of a public road. But see Nelson,
277 F.3d at 185, 189 (highlighting that § 245(b)(2)(B) construed to
have a specific-intent requirement properly targets a badge or inci-
dent of slavery because it narrowly targets conduct that involves
“two distinct kinds of discriminatory relationships with the vic-
tim”). It is enough under the Constitution for a statute to require
only “but-for” causation. As the Supreme Court has explained,
“whatever else they may have encompassed, the badges and inci-
dents of slavery—its ‘burdens and disabilities’—included restraints
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22-13822 Opinion of the Court 25

upon ‘those fundamental rights which are the essence of civil free-
dom . . . .’” Jones, 392 U.S. at 441 (quoting Civil Rights Cases, 109 U.S.
at 22). And we must identify only whether Congress rationally pro-
hibited conduct that “herds men . . . and makes their ability to [ex-
ercise their rights] turn on the color of their skin.” Id. at 442–43.
When a defendant would not have engaged in violence “but for”
his victim’s race and use of a public road, he makes his victim’s use
of that road “turn on the color of their skin.”6 See id. A law

6 Dismantling slavery that targets Black people sits at the heart of the Thir-

teenth Amendment. But the amendment does not bar only that form of slav-
ery. See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 359–60
(2005) (highlighting that the Thirteenth Amendment bars “all forms of ‘slavery
[and] involuntary servitude’ . . . .”); compare U.S. CONST. amend XIII, § 1 (bar-
ring all forms of slavery and involuntary servitude, except for as punishments
for a crime) with amend. XV, § 1 (prohibiting the denial of the right to vote
only on the basis of race, color, or previous condition of servitude). The Su-
preme Court has repeatedly recognized this fact. See Slaughter-House Cases, 83
U.S. (16 Wall.) 36, 72 (1873) (acknowledging the Thirteenth Amendment pro-
hibits “slavery of the Mexican or Chinese race . . . .”); Hodges v. United States,
203 U.S. 1, 16–17 (1906), overruled on other grounds by Jones, 392 U.S. at 441 n.78
(“Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo
Saxon, are as much within [the Thirteenth Amendment’s] compass as slavery
or involuntary servitude of the African.”); United States v. Kozminski, 487 U.S.
931, 942 (1988) (“The primary purpose of the Amendment was to abolish the
institution of African slavery . . . but the Amendment was not limited to that
purpose; the phrase ‘involuntary servitude’ was intended to cover those forms
of compulsory labor akin to African slavery which in practical operation would
tend to produce like undesirable results.” (internal quotation marks and cita-
tion omitted)); see also Nelson, 277 F.3d at 179 (“[T]here is strong precedent to
support the conclusion that the Thirteenth Amendment extends its protec-
tions to religions directly, and thus to members of the Jewish religion, without
the detour through historically changing conceptions of ‘race’ . . . .”). So
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26 Opinion of the Court 22-13822

criminalizing such violence targets a narrow band of conduct that
prevents people of an identifiable race from being free rather than
“creating a general, undifferentiated federal law of criminal as-
sault . . . .” 7 See Nelson, 277 F.3d at 185, 189.
Jones so clearly demands that we uphold § 245(b)(2)(B) that
Leahy seeks a way around it. He spends the bulk of his argument
adopting a bold strategy. Leahy essentially invites us to overrule
Jones because he says it’s inconsistent with other later precedent
from the Supreme Court. See City of Boerne v. Flores, 521 U.S. 507
(1997); Shelby County v. Holder, 570 U.S. 529 (2013). Instead, he
would have our review of Thirteenth Amendment legislation be
guided by the Court’s decision in the Civil Rights Cases, 109 U.S. 3
(1883).
We decline Leahy’s invitation. As we’ve already explained,
the Supreme Court has remained committed to Jones. See Runyon,
427 U.S. at 179; Griffin, 403 U.S. at 105; Patterson, 491 U.S. at 172.
And in any case, for the purposes of this dispute, the Civil Rights
Cases and Jones reach the same outcome. In the Civil Rights Cases,
the Court recognized “restraint of . . . movements except by the

Congress may similarly legislate against the badges and incidents of other
forms of slavery that don’t specifically target Black people.
7 Several of our sister circuits have recognized that racially motivated violence

alone can be rationally identified as a “badge or incident of slavery”—inde-
pendent of any use of public facilities. See, e.g., United States v. Metcalf, 881 F.3d
641, 645 (8th Cir. 2018) (“[W]e . . . conclude that Congress rationally deter-
mined that racially motivated violence constitutes a badge and incident of slav-
ery.”).
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22-13822 Opinion of the Court 27

master’s will” to be a badge of slavery. 109 U.S. at 22. So even under
the more restrictive test Leahy urges us to adopt, a statute like
§ 245(b)(2)(B), which prohibits racially motivated violence on the
instrumentalities of movement—roads—would still clearly be a
lawful exercise of Section 2 authority.
Plus, to the extent the two decisions conflict, in Jones itself,
the Supreme Court addressed the Civil Rights Cases, framed that
matter as somewhat consistent with Jones, and concluded that any
questions about the decision’s holding had been “rendered largely
academic . . . .” Jones, 392 U.S. at 441 n.78. Instead, after Jones, the
Civil Rights Cases’s Thirteenth Amendment analysis stood for only
the limited principle that the amendment “authorizes Congress not
only to outlaw all forms of slavery and involuntary servitude but
also to eradicate the last vestiges and incidents of a society half
slave and half free by securing to all citizens, of every race and
color, ‘the same right to make and enforce contracts, to sue, be par-
ties, give evidence, and to inherit, purchase, lease, sell and convey
property, as is enjoyed by white citizens.’” Id. (quoting Civil Rights
Cases, 109 U.S. at 22 (Harlan, J., dissenting)). That principle doesn’t
call into question the constitutionality of § 245(b)(2)(B).
As for the Court’s later decisions Leahy claims are incon-
sistent with Jones, City of Boerne v. Flores and Shelby County v. Holder,
for starters, neither applies to Thirteenth Amendment legislation.
The Supreme Court has only ever applied the “congruence-and-
proportionality” test from Boerne to Fourteenth Amendment legis-
lation. Cf. Allen v. Milligan, 599 U.S. 1, 41 (2023) (assessing the scope
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28 Opinion of the Court 22-13822

of Congress’s Fifteenth Amendment authority without reference
to Boerne); but see id. at 80 n.19 (Thomas, J., dissenting) (“While our
congruence-and-proportionality cases have focused primarily on
the Fourteenth Amendment, they make clear that the same princi-
ples govern ‘Congress’ parallel power to enforce the provisions of
the Fifteenth Amendment.’”) (quoting Boerne, 521 U.S. at 518). And
Shelby County centered on Fifteenth Amendment legislation. See
570 U.S. 529.
And in any case, even if we agreed with Leahy that the logic
of Jones has been repudiated by these decisions—we don’t—we
couldn’t overrule the Supreme Court. We are an inferior tribunal.
And the Supreme Court has explained that even “if a precedent of
[the Supreme] Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the Court
of Appeals should follow the case, which directly controls, leaving
to [the Supreme] Court the prerogative of overruling its own deci-
sions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477,
484 (1989); see also Ramos v. Louisiana, 590 U.S. 83, 124 n.5 (2020)
(Kavanaugh, J., concurring) (“[F]ederal courts have a constitutional
obligation to follow a precedent of [the Supreme] Court unless and
until it is overruled by [the Supreme] Court.”).
Simply put, Jones binds us, and under Jones, we must uphold
the exercise of Congress’s power under the Thirteenth Amend-
ment if Congress could have rationally determined the conduct it
prohibited to be a “badge or incident of slavery.” Legislation to
protect all Americans’ access, regardless of race, to public roads fits
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22-13822 Opinion of the Court 29

that bill—especially when, as here, a charged individual engaged in
violence to prevent the use of such facilities.
B. The district court committed no reversible error in crafting its
jury instructions and declining to answer the jury’s question.

Because § 245(b)(2)(B) is constitutional, we turn to Leahy’s
challenges to the district court’s interactions with the jury about
that provision. Leahy argues that the district court (1) erred when
it refused to instruct the jury that to be convicted under §
245(b)(2)(B), Leahy must have “intend[ed] to deprive a victim of
the right to enjoy a public facility or benefit”; (2) in the alternative,
abused its discretion by refusing to instruct the jury on Leahy’s the-
ory of defense; and (3) abused its discretion by not answering the
jury when it asked the court whether “the fact that both parties
were on the road at the same time” proves Leahy acted “because
of ” J.T.’s use of Starkey Road. We address each in turn and hold
the district court did not commit reversible error.
1. The district court did not commit reversible error with the in-
structions it issued to the jury.
Leahy contends the district court abused its discretion when
it did not instruct the jury that the Government had to prove that
the defendant had “the intent to punish or prevent or dissuade the
victim from using the public facility.” We disagree.
We review de novo the legal correctness of the district
court’s jury instructions. United States v. Seabrooks, 839 F.3d 1326,
1332 (11th Cir. 2016) (citing United States v. Prather, 205 F.3d 1265,
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30 Opinion of the Court 22-13822

1270 (11th Cir. 2000)). Our review is for harmless error, so we will
vacate the conviction only if “we are left with a substantial and in-
eradicable doubt as to whether the jury was properly guided in its
deliberations.” Id. at 1333 (internal quotation marks omitted)
(quoting United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir.
2013)). “But [w]hen the jury instructions, taken together, accu-
rately express the law applicable to the case without confusing or
prejudicing the jury, there is no reason for reversal even though the
isolated clauses may, in fact, be confusing, technically imperfect, or
otherwise subject to criticism.” Id. (internal quotation marks omit-
ted) (alteration in original).
We start, as we must, by comparing the relevant statute with
the district court’s instructions. Section 245(b)(2)(B) mandates that
a defendant must have acted “because [his victim] is or has
been . . . participating in or enjoying any . . . [state or local public]
facility . . . .” So the district court directed the jury that, to find
Leahy guilty, it had to conclude that Leahy would not have acted as
he did “but-for J.T.’s use of ” a public road (in this case, Starkey
Road). It explained that the jury must find as follows:
[T]hat the Defendant acted because of
J.T.’s use of a facility provided and ad-
ministered by the State of Florida—in
this case, Starkey Road, Pinellas
County[,] Florida . . . . For you to find
that the Defendant acted “because of ”
J.T’s use of a public facility, you must
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22-13822 Opinion of the Court 31

find that the Defendant would not have
acted as he did but-for J.T.’s use of that
facility. J.T.’s use of a public facility
need not be the only cause for the De-
fendant’s action. Thus, you may find
this element is satisfied even if the de-
fendant had additional reasons for his
actions so long as you find that the De-
fendant would not have acted as he did
in the absence of J.T.’s use of that facil-
ity.
Leahy argues this instruction was faulty because it did not
explicitly charge the jury with determining that he acted with “in-
tent” to prevent J.T.’s use of Starkey Road specifically. The Govern-
ment responds that it needed to prove only that the defendant acted
“but for”—that is, because of—the use of that facility, as the court
instructed. We agree with the Government.
“On a question of statutory interpretation, we begin with
the statutory text.” United States v. Doe, 137 F.4th 1277, 1280 (11th
Cir. 2025). And “[b]ecause the text is unambiguous, we also end
our analysis with it.” Id. Section 245(b)(2)(B) extends criminal lia-
bility where the defendant acted “because” of his victim’s use of a
public road.
The Supreme Court has recently made clear, interpreting
the Civil Rights Act of 1964, that when a statute uses the word “be-
cause,” it “incorporates the ‘simple’ and ‘traditional’ standard of
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32 Opinion of the Court 22-13822

but-for causation.” Bostock v. Clayton County, 590 U.S. 644, 656
(2020) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
346, 360 (2013)); see also Burrage v. United States, 571 U.S. 204, 212–
13 (2014) (explaining the Supreme Court’s “insistence on but-for
causality” where “because” is used). “But-for” causation differs
from “intent,” which is “the mental resolution or determination to
do” an act. Intent, BLACK’S LAW DICTIONARY (12 ed. 2024). Unlike
“intent,” “but-for” causation doesn’t require a defendant to have
been “determin[ed]” to take any action. See Nelson, 277 F.3d at 187
(explaining that an intent-based standard encompasses a “nar-
rower” class of conduct than but-for causation). For “but-for cau-
sation” to exist, the government need show only that “a particular
outcome”—here, Leahy’s assault of J.T.—“would not have hap-
pened ‘but for’ the purported cause”— here, J.T.’s use of Starkey
Road. See id.
The Second Circuit has helpfully explained in the context of
§ 245(b)(2)(B) the differences between “but-for” causation and an
intent-based standard. Adapting that court’s explanation for our
fact pattern, and reading “because” to mean “but-for” causation in
§ 245(b)(2)(B), “a racially motivated assault . . . would be covered
by the statute if the attacker sought out his victims exclusively [on
a public road] (but not if the attacker followed a victim from [his]
house and attacked [him] while [he] was [on the public road] only
because this happened to be where the first opportunity to assault
[him] arose).” Id. By contrast, with an intent-based standard, “an
attack would not come under the statute even if the attacker only
assaulted victims [on the public road], unless the focus on victims
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22-13822 Opinion of the Court 33

who used the [road] was more than just a matter of convenience.
To be covered, the victims’ public-[road]-use would itself have to be
an intrinsic element of the attacker’s intent . . . , a reason, that is, for
the assault.” Id.
As this example shows, the core difference between “but-
for” causation and “intent,” as applied to the fact pattern before us,
is that an “intent” standard requires the “purpose” or “reason” for
conducting the attack to be to stop the use of the road. Under an
“intent” standard, the jury must find Leahy acted to prevent J.T.
from using Starkey Road to return a guilty verdict.
“But-for” causation, on the other hand, requires only that
the attacker wouldn’t have attacked if the victim didn’t use the
road—not that his “reason” was to stop the use of the road. For
example, the road could have been a “but-for” cause of the attack
because the attacker thinks it’s unlikely he’ll get caught on the
road, so he attacks victims only there. Or the attacker expects to
find victims particularly vulnerable on the road, so he targets them
there. Another way to look at this is to remove the road from the
equation, see Bostock, 590 U.S. at 656, and place the victim and the
attacker in an entirely different location, like a privately owned su-
permarket (with no new variables that might motivate an attack).
If we ask would the attacker still assault the victim, and the answer
is “no,” the use of the road was a “but-for” cause. 8

8 This standard differs from requiring only that to find criminal liability, the

attack must have occurred “while” a victim was using a road, as in an earlier
draft version of § 245(b)(2)(B). See Nelson, 277 F.3d at 187. If the standard were
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34 Opinion of the Court 22-13822

To be sure, the use of a road can be the “but-for” cause of
an attack if the attacker “intended” or had the purpose to stop his
victim’s use of the road. That is, the attacker wouldn’t have at-
tacked without this goal of interfering with the use of the road. In
these situations, the distinction collapses, and both “intent” and a
“but-for” cause are present. Indeed, the record supports that con-
clusion here, where Leahy said he acted to “keep” Black people “in
their area”—not on Starkey Road. See Part II.C., infra.
But that’s not always the case. And as we’ve explained, the
attacker need not have intended to dissuade use of a road for the
use of the road to still be a “but-for” cause. Similarly, almost al-
ways, when the road is the “but-for” cause of an attack, the attack
will have the effect of interfering with the use of the road. But that
does not mean that the attacker necessarily acted with the reason of
interfering with the use of the road.
With this distinction in mind, we conclude that
§ 245(b)(2)(B)’s text required the Government to show only that
Leahy wouldn’t have acted “but for” J.T.’s use of a public facility.

“while” using a public road—as opposed to “but-for” causation—an attacker
would be liable if he would have attacked his victim anywhere in the world
but just happened to meet his victim on the road. See id. By contrast, under
“but-for” causation, the attack must have been dependent on the victim’s use
of the road. See id. That’s not to say no other locations, conditions, or factors
that would cause the attacker to assault the victim in the absence of the road
must exist. Cf. Bostock, 590 U.S. at 656 (explaining to discern a “but-for” cause,
we “change one thing at a time and see if the outcome changes.” (emphasis
added)). But the particular attack in that moment must have happened as a
result of the victim’s use of the road.
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22-13822 Opinion of the Court 35

Congress enacted § 245(b)(2)(B) in 1968, just four years after it
passed the Civil Rights Act of 1964. And we see no reason why the
Court would interpret “because” differently in the two statutes.
See Bostock, 590 U.S. at 656 (interpreting “because of ” in Title VII
of the Civil Rights Act of 1964).
Given that the word “because” has an ordinary meaning of
“but-for” causation, it’s no surprise that Leahy concedes that “be-
cause” as § 245(b)(2)(B) uses the term elsewhere means “but for.”
Specifically, § 245(b)(2)(B) requires that the defendant have acted
“because of [his victim’s] race . . . .” And both parties agree that
this use of “because” requires proof of nothing more than “but-
for” causation—not intent. But Leahy asks for a different reading
of “because” in separate places of the same statute.
To Leahy, acting “because of . . . race” means he would not
have acted “but for race,” but acting “because [his victim] is . . . par-
ticipating in or enjoying any . . . [state or local public] facility”
means acting “with intent to punish or prevent or dissuade” his vic-
tim from using a “facility.” We recognize that when a statute uses
the same word twice, that phrase typically has the same meaning.
See In re Failla, 838 F.3d 1170, 1176 (11th Cir. 2016) (“The presump-
tion of consistent usage instructs that ‘[a] word or phrase is pre-
sumed to bear the same meaning throughout a text’ . . . .” (quoting
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 170 (2012))).
So we reject a reading of § 245(b)(2)(B) that tries to give “because”
two different meanings in the same subsection.
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36 Opinion of the Court 22-13822

If Congress had wanted to require the Government to prove
intent to interfere with the use of a particular public facility, “it
could have easily said so.” Doe, 137 F.4th at 1281, 1286 (quoting
Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685, 705 (2022)). In other stat-
utes that deploy “because,” Congress has “added ‘solely’ to indicate
that actions taken ‘because of ’ the confluence of multiple factors
do not violate the law.” Bostock, 590 U.S. at 656. And it has “written
‘primarily because of ’ to indicate that the prohibited factor had to
be the main cause of the defendant’s” actions. See id. But with
§ 245(b)(2)(B), Congress used only “because,” which signals bare
“but-for” causation.
The structure of § 245 further supports this reading of the
text. See Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436
(2019) (“In statutory interpretation disputes, a court’s proper start-
ing point lies in a careful examination of the ordinary meaning and
structure of the law itself.”). Elsewhere in § 245, Congress ex-
pressly conditioned criminal liability on more than “but-for” causa-
tion. Other parts of § 245, for instance, prohibit a person from act-
ing “in order to intimidate [his victim] . . . from . . . .” engaging in
conduct. See 18 U.S.C. § 245(b)(1),(4) & (5) (emphasis added). “A
material variation in terms suggests a variation in meaning.” In re
Failla, 838 F.3d at 1176 (quoting SCALIA & GARNER, READING LAW,
supra, at 170); see also Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1279
(11th Cir. 2006) (“[I]t is generally presumed that Congress acts in-
tentionally and purposely where it includes particular language in
one section of a statute but omits it in another.” (quoting Bledsoe v.
Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 824
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22-13822 Opinion of the Court 37

(11th Cir. 1998))). So we expect the ordinary meaning of “because”
to be different from “in order to.”
Dictionaries define the phrase “in order to” to mean acting
with “the purpose of.” See Order, OXFORD ENGLISH DICTIONARY,
https://perma.cc/T2B2-WH6S (last accessed Aug. 14, 2025) (defin-
ing “in order to” to be “[w]ith infinitive expressing purpose: so
as to do or achieve (some end or outcome)”); In order to, CAMBRIDGE
DICTIONARY, https://perma.cc/5SZA-8EPC (last accessed Aug. 14,
2025) (“We use in order to with an infinitive form of a verb to ex-
press the purpose of something.”). So if Congress had wanted to
impose a specific-intent requirement on § 245(b)(2)(B), then it
could have used “in order to” as it did elsewhere in the statute. But
Congress chose “because.” And “because” requires only a showing
of “but-for” causation.9
Leahy doesn’t offer persuasive grounds to depart from the
ordinary meaning of “because.” He argues that the “but-for” test
is unclear when applied to whether a defendant acted “because” of
the use of a public facility. We disagree. “But-for” causation is
straightforward. As the Supreme Court has explained, “a but-for
test directs us to change one thing at a time and see if the outcome

9 We recognize that several of our sister circuits have interpreted § 245(b)(2)(B)

to require “intent” to interfere with the use of a public facility. See Nelson, 277
F.3d at 189 & n.24 (collecting cases). But all these cases long predate the Su-
preme Court’s recent guidance that the ordinary meaning of “because” is “but-
for” causation. Bostock, 590 U.S. at 656. So we respectfully decline to adopt
their conclusion.
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38 Opinion of the Court 22-13822

changes. If it does, we have found a but-for cause.” Bostock, 590
U.S. at 656.
So to sustain a § 245(b)(2)(B) conviction, a jury must assess
only whether, if we take away the relevant public facility—if J.T.
hadn’t used Starkey Road that night—would the defendant still
have assaulted him that evening. If the answer is “no,” then the
“facility” is a “but-for” cause. To reiterate, the answer can be “no”
for any number of reasons. But no matter the defendant’s “reason”
for assaulting his victim, if the answer is “no,” the jury should find
the defendant acted “because” of the use of a public “facility,” as
§ 245(b)(2)(B) requires. See Nelson, 277 F.3d at 187. Congress and
states have repeatedly used this type of standard to define elements
of both criminal and civil statutes. See Burrage, 571 U.S. at 213–14
(collecting cases).
Contrary to Leahy’s argument, a specific-intent standard
also isn’t necessary to “harmonize[] the ‘but for’ standard with the
statute’s presumed constitutional purpose.” As we’ve already ex-
plained, § 245(b)(2)(B) is a constitutional exercise of Congress’s
Thirteenth Amendment authority even under a “but-for” standard.
See Part II.A, supra. In short, Congress reasonably determined that
not allowing someone to use a public road because they are Black
is a “badge or incident of slavery.”
At bottom, in this case, § 245(b)(2)(B) called for the jury to
evaluate whether Leahy would have attacked J.T. in the “absence”
of J.T.’s use of Starkey Road, just as the court instructed the jury.
So we conclude the district court appropriately instructed the jury
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22-13822 Opinion of the Court 39

that to find Leahy guilty, it had to “find that [he] would not have
acted as he did but-for J.T.’s use of ” Starkey Road.
2. The district court did not abuse its discretion rejecting Leahy’s
proposed “Theory of Defense” jury instructions.
Next, Leahy argues, in the alternative, that the district court
abused its discretion by refusing to instruct the jury on his preferred
theory of defense. We hold it did not.
We review for abuse of discretion the district court’s deci-
sion not to give a proposed jury instruction as to the defendant’s
theory of defense. United States v. Woodard, 531 F.3d 1352, 1364
(11th Cir. 2008) (citing United States v. Arias-Izquierdo, 449 F.3d 1168,
1186 (11th Cir. 2006)). The district court abused its discretion if
(1) Leahy’s requested instruction correctly stated the law, (2) the in-
structions the court gave did not substantially cover the subject
matter of the requested instruction, and (3) the subject matter of
the proposed instruction “dealt with an issue in the trial court that
was so important that the failure to give it seriously impaired the
defendant’s ability to defend himself.” Id. (quoting United States v.
Paradies, 98 F.3d 1266, 1287 (11th Cir. 1996)).
To recap, after the district court rejected Leahy’s reading of
§ 245(b)(2)(B), Leahy submitted a proposed instruction entitled,
“Theory of Defense.”
That proposed instruction would have directed the jury to
acquit Leahy if it found that Leahy would have acted the same way
had J.T. been on a different road:
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40 Opinion of the Court 22-13822

It is the Defense’s theory that the de-
fendant would have behaved in the same
way he did on the night in question even
if J.T. had not used Starkey Road. If you
find that the Government has failed to
prove beyond a reasonable doubt that
the defendant acted “because of ” J.T.’s
use of Starkey Road – that is, that he
would not have acted as he did in the ab-
sence of J.T.’s use of Starkey Road –
then you must find the defendant not
guilty.
Leahy admitted these instructions were another attempt to
get the court to instruct the jury on a specific-intent standard under
a different label. And the district court rejected them as a result.
To the extent that Leahy’s requested instruction called for specific
intent, it was an incorrect statement of the law, so the district court
was right to reject it.
Even so, though, the court’s adopted instructions closely re-
sembled Leahy’s requested instructions. The instructions ex-
plained that the jury must acquit Leahy if he “would not have acted
as he did in the absence of J.T.’s use of that facility.” “That facility,”
the instruction explained, was Starkey Road.
So Leahy pretty much got what he asked for. And even if
§ 245 called for specific intent, given the “wide discretion” afforded
district courts to phrase their instructions, the court did not abuse
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22-13822 Opinion of the Court 41

its discretion by refusing to use the specific language Leahy re-
quested. See Teel v. Lozada, 99 F.4th 1273, 1279 (11th Cir. 2024). It
substantially conveyed Leahy’s defense to the jury.
Leahy’s contention that the adopted instruction “treats
Starkey Road’s inclusion in the indictment as surplusage . . . .” and
therefore “constitute[s] ‘a constructive amendment to the indict-
ment’’’ fares no better. “A constructive amendment to the indict-
ment occurs where the jury instructions so modify the elements of
the offense charged that the defendant may have been convicted on
a ground not alleged by the indictment.” United States v. Poarch, 878
F.2d 1355, 1358 (11th Cir. 1989) (quoting United States v. Lignarolo,
770 F.2d 971, 981 n.15 (11th Cir. 1985)).
But the indictment charges Leahy with acting “because J.T.
was enjoying a facility provided and administered by the State of
Florida and its subdivision, that is, Starkey Road.” And the district
court’s jury instructions closely tracked this language in the indict-
ment. So it’s simply inaccurate to suggest that the district court
constructively amended the indictment.
For these reasons, we find no reversible error in the district
court’s refusal to adopt Leahy’s “Theory of Defense” instructions.
3. The district court did not abuse its discretion declining to an-
swer the jury’s question.
Finally, Leahy challenges the district court’s refusal to an-
swer the jury’s question. We review the district court’s response to
a question from the jury for abuse of discretion. United States v.
Wright, 392 F.3d 1269, 1279 (11th Cir. 2004) (citing United States v.
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42 Opinion of the Court 22-13822

McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991)). Our review of sup-
plemental jury instructions considers them “as part of the entire
jury charge and in light of the indictment, evidence presented, and
arguments of counsel.” United States v. Joyner, 882 F.3d 1369, 1375
(citing United States v. Lopez, 590 F.3d 1238, 1248 (11th Cir. 2009)).
Leahy argues the district court should have answered “no”
when the jury asked whether both parties’ presence on Starkey
Road was enough to show that Leahy acted “because of ” J.T.’s use
of Starkey Road. In Leahy’s view, the question reflects that the jury
didn’t understand the causation standard. And Leahy further sug-
gests that was allegedly so because the district court “did not clarify
the predicate about what constitutes cause and effect” for “but-for”
causation. Relatedly, Leahy asserts that the district court’s invita-
tion to the jury to reformulate its question wasn’t sufficient because
the original question “was so basic to begin with . . . .”
We reject Leahy’s arguments. “When a jury requests sup-
plemental instruction, a district court should answer ‘within the
specific limits of the question presented’ and resolve the jury’s dif-
ficulties ‘with concrete accuracy.’” Joyner, 882 F.3d at 1375 (quoting
United States v. Baston, 818 F.3d 651, 661, 663 (11th Cir. 2016)). Alt-
hough we afford the district court “considerable discretion” in
crafting its response, it may not “misstate the law or confuse the
jury.” Id. (citing Lopez, 590 F.3d at 1247–48).
Nor may the district court weigh the evidence for the jury.
See Erlinger v. United States, 602 U.S. 821, 834 (2024) (“Judges may
not assume the jury’s factfinding function for themselves . . . .”). So
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22-13822 Opinion of the Court 43

a district court observes best practices by avoiding yes-or-no ques-
tions that invite the court to do just that. See United States v. Walker,
575 F.2d 209, 214 (9th Cir. 1978) (“Questions or illustrations from
the jury may be phrased so that a simple affirmative or negative
response might favor one party’s position, place undue weight on
certain evidence, or indicate that the trial judge believes certain
facts to be true when such matters should properly be determined
by the jury. Because the jury may not enlist the court as its partner
in the factfinding process, the trial judge must proceed circum-
spectly in responding to inquiries from the jury.”).
Here, the district court properly refused to interfere with the
jury’s role to determine guilt or innocence. The jury asked the dis-
trict court whether a particular factual finding—that Leahy and J.T.
were both on Starkey Road at the same time—was legally sufficient
to prove an element of the charges. But the court had already in-
structed the jury about what it needed to find to return a guilty
verdict. And we’ve explained why those instructions were suffi-
cient.
Plus, the jury’s question essentially asked the district court
to confirm a factual finding. Not only that, but it did so without
providing context as to how a response would have aided the jury’s
deliberations. So it was reasonable for the court to conclude that
the question asked it to do the jury’s job and weigh the evidence
for it. And the district court did not err by refusing to answer and
inviting the jury to present a clearer question.
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44 Opinion of the Court 22-13822

In fact, had the court suggested what evidence would have
sufficed to convict Leahy, it would have erred and exceeded its
proper role. See Walker, 575 F.2d at 214; United States v. Rocha, 916
F.2d 219, 238 (5th Cir. 1990) (assessing whether the district court
“improperly commented on the weight of the evidence” when is-
suing supplemental instructions).
Finally, the jury’s conduct after the district court’s answer
suggests it was not confused on the legal standard. Even though
the district court invited the jury to reformulate its question, the
jury did not do so. Instead, about 30 minutes later, the jury issued
its verdict.
In sum, the district court didn’t err when it declined to an-
swer the jury’s question. 10
C. The district court did not err denying Leahy’s motions for judg-
ment of acquittal and a new trial.

Last, Leahy challenges the denial of his motions for judg-
ment of acquittal and a new trial. We review the district court’s
denial of a motion for a judgment of acquittal de novo. United
States v. Zuniga-Arteaga, 681 F.3d 1220, 1222–23 (11th Cir. 2012) (cit-
ing United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011)). As

10 Leahy, in passing, also contends that “the jury simply issued a split, incon-

sistent verdict to overcome its deadlock and confusion.” But he cites no legal
authority for this separate claim, and he develops no argument, so we do not
address it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014) (collecting cases recognizing when an appellant waives an issue on ap-
peal).
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22-13822 Opinion of the Court 45

for the denial of a motion for a new trial, we review that for abuse
of discretion. United States v. Green, 981 F.3d 945, 960 (11th Cir.
2020) (citing United States v. Hunt, 526 F.3d 739, 744 n.1 (11th Cir.
2008)).
Leahy argues that insufficient evidence supported his con-
viction. He again echoes his jury-instruction arguments, contend-
ing that no reasonable jury could find he acted “because of ” J.T.’s
use of Starkey Road. But we have no trouble concluding the gov-
ernment presented enough evidence to support Leahy’s convic-
tion.
We review the evidence in the light most favorable to the
jury’s verdict and accept all reasonable factual inferences to deter-
mine whether “a reasonable trier of fact could find that the evi-
dence established guilt beyond a reasonable doubt.” United States
v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996) (citing United States v.
Keller, 916 F.2d 628, 632 (11th Cir. 1990); and then citing United
States v. Gafyczk, 847 F.2d 685, 691–92 (11th Cir. 1988)). And under
this standard, we must affirm the conviction “unless there is no rea-
sonable construction of the evidence from which the jury could
have found the defendant guilty beyond a reasonable doubt.”
United States v. Azmat, 805 F.3d 1018, 1035 (11th Cir. 2015) (internal
quotation marks omitted) (quoting United States v. Garcia, 405 F.3d
1260, 1269 (11th Cir. 2005)).
The evidence easily allowed a reasonable jury to conclude
that Leahy would not have acted “but for” the fact that J.T. is Black
and used Starkey Road. First, the evidence showed that Leahy
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46 Opinion of the Court 22-13822

repeatedly tried to physically run J.T. off Starkey Road while ges-
turing like he was going to shoot J.T. and incessantly yelling, “[F]***
you n*****.” Second, when Leahy and J.T. got to a traffic light,
Leahy got out of his car and went after J.T. on Starkey Road on
foot, continuing to yell, “[F]*** you, n*****” at J.T. Third, Leahy
himself explained why he did what he did. He told the officers,
“[T]hese guys [Black people] are animals, you know what I’m say-
ing? Y’all have to maintain these people, keep them in their—in
their areas.” Put simply, Leahy was very transparent about his mo-
tivation: He wanted to keep J.T. off Starkey Road because Starkey
Road was outside what Leahy viewed as Black people’s “areas.” So
a jury could easily conclude that Leahy would not have attacked
J.T. if he had not been on Starkey Road and in what Leahy believed
to be his “area.”
That conclusion becomes even clearer because Leahy re-
peatedly emphasized that he was a “suburban white kid” and de-
scribed Black people and specifically J.T. as from the “ghetto.” So
the jury reasonably could have inferred that Leahy acted so a Black
person would not be in “his” suburbs, including on Starkey Road.
Leahy offers three arguments as to why the evidence here is
insufficient: (1) he says he made his incriminating statements only
to try “to convince the police falsely that J.T. randomly attacked
him”; (2) he wanted the police to “maintain” Black people and
didn’t say that “he wanted to keep [B]lack people in their areas”;
and (3) the Government didn’t present any evidence that he said
anything about Starkey Road before, during, or after his
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22-13822 Opinion of the Court 47

misconduct. Leahy also notes that the district court stated that this
was “not a real, real strong case . . . .” We are not persuaded.
None of these arguments make the jury’s conclusion that
Leahy went after J.T. because he is Black and was using Starkey
Road any less reasonable based on the record. And Leahy’s implicit
suggestion that a guilty verdict required Leahy to mention Starkey
Road specifically is a non-starter. Section 245(b)(2)(B) does not re-
quire any magic words. Cf. United States v. Price, 464 F.2d 1217, 1218
(8th Cir. 1972) (upholding § 245 conviction where the defendant
argued “the altercation only incidentally occurred on federal prop-
erty”); Ebens, 800 F.2d at 1428–29 (upholding § 245 conviction
where the defendant claimed the fight was “simply a barroom
brawl which got out of hand and resulted in the death of one of
the participants and injuries to another.”). Here, as we’ve ex-
plained, the evidence sufficiently supports the conclusion that
Leahy went after J.T. because he was Black and because he was us-
ing Starkey Road.
The district court’s comment that the Government didn’t
present “a real, real strong case” also does not help Leahy. After all,
whatever else the district court may have thought about the Gov-
ernment’s case, it still determined that enough evidence allowed a
jury to return a guilty verdict. We have explained why that was the
right answer based on the evidentiary record here. So we affirm
the denial of Leahy’s motions for judgment of acquittal and a new
trial.
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48 Opinion of the Court 22-13822

III. CONCLUSION

For the foregoing reasons, we affirm Leahy’s conviction.
AFFIRMED.
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22-13822 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, joined by ABUDU, Circuit Judge, concur-
ring:
In 1820, Congress enacted the Missouri Compromise. Act
of March 3, 1820, ch. 19, 3 Stat. 544; Act of March 6, 1820, ch. 22,
3 Stat. 545. That legislation did three major things: It admitted
Maine to the Union as a free state; it admitted Missouri as a slave
state; and it prohibited slavery above the 36° 30' latitude line in the
remaining parts of the Louisiana Territory. Act of March 3, 1820,
3 Stat. at 544; Act of March 6, 1820, 3 Stat. at 545–48.
Thirty-seven years later, in Dred Scott v. Sandford, 60 U.S. (19
How.) 393 (1857), the Supreme Court notoriously held that the Mis-
souri Compromise was unconstitutional. There, Dred Scott, an en-
slaved man, sued for his freedom. See id. at 431. His owner had
moved him to the free state of Illinois and the free portion of the
Louisiana Territory for a total of four years before moving him
back to the slave state of Missouri. Id. So Scott sought manumis-
sion, based on his time in free lands. See id at 430.
But the Supreme Court denied him relief. Instead, the Court
ruled the Missouri Compromise, which it characterized as an “act
of Congress which prohibited a citizen from holding and owning
slaves . . . in the territory of the United States . . . ,” to be unconsti-
tutional. Id. at 452. And the Court went even further. It held that
Black people “were not regarded as a portion of the people or citi-
zens of the Government . . . .” and “had no rights which the white
man was bound to respect . . . .” Id. at 407, 411.
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2 ROSENBAUM, J., Concurring 22-13822

After the Civil War, we abolished slavery with the Thir-
teenth Amendment and constitutionally corrected that stain on our
history. But the Framers of the Thirteenth Amendment went fur-
ther. Remembering how the Court slashed Congress’s authority to
eradicate slavery in Dred Scott, Americans expressly empowered the
legislative branch to pass laws protecting the fundamental rights of
newly freed slaves. So under Section 2 of the Thirteenth Amend-
ment, as the Supreme Court articulated in Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 440 (1968), Congress can legislate to prohibit any
activity it “rationally . . . determine[s]” to be a “badge[] or . . . inci-
dent[] of slavery.”
By imbuing Congress with authority to eradicate the ves-
tiges of slavery, we sought to ensure the new freedom would not
become “a mere paper guarantee,” and slavery would not
reemerge under a new name. See CONG. GLOBE, 39th Cong., 1st
Sess. 1151 (1866) (statement of Rep. Thayer). After all, unfortu-
nately, “the views that motivated Dred Scott . . . have not been con-
fined to the past, and we must remain ever vigilant . . . .” Students
for Fair Admissions v. Inc. v. President & Fellows of Harv. Coll., 600 U.S.
181, 268 (2023) (Thomas, J., concurring).
I wrote the majority opinion, so I’m sure it comes as no sur-
prise that I concur in it in full. As that opinion explains, Jones re-
quires us to conclude that § 245(b)(2)(B), under which Leahy was
convicted, is constitutional.
So Leahy spends most of his briefing asking us to overrule
Jones as wrongly decided. That’s an action only the Supreme Court
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22-13822 ROSENBAUM, J., Concurring 3

may take. But it’s also an action that the history of the Thirteenth
Amendment doesn’t support. I write separately to explain why.
A review of the history of the Thirteenth Amendment
shows that Jones is so consistent with the Framers’ intentions that
the Framers could have authored Jones themselves. At the same
time, Leahy’s proposed alternative is a doctrinal framework that is
a relic of Jim Crow, and it would dramatically shrink the authority
the Framers gave to Congress in response to Dred Scott. See Civil
Rights Cases, 109 U.S. 3 (1883).
To explain why Jones is correct, we must look to the text of
and history behind the Thirteenth Amendment. And we must ex-
plore why other doctrinal formulations, which Leahy favors, do not
capture the original public meaning of the Thirteenth Amendment
as well as Jones.
My discussion proceeds in four parts. First, I explain how
the text of the Thirteenth Amendment supports Jones. Second, I
show how the decision accurately captures the vision of the Recon-
struction Congress. Third, I identify further support for Jones in
early judicial decisions immediately after the ratification of the
Thirteenth Amendment. Finally, I explain why other Supreme
Court decisions don’t give us cause to doubt the validity of Jones.
The Court got it right in Jones. We have “no excuse for re-
fusing to apply the original public meaning in the dispute . . . be-
fore us.” Fulton v. City of Philadelphia, 593 U.S. 522, 627 (2021) (Gor-
such, J., concurring).
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4 ROSENBAUM, J., Concurring 22-13822

I. The text of the Thirteenth Amendment supports Jones.
I begin, as we always do when we evaluate the scope of a
constitutional provision, with the text. See United States v. Rahimi,
602 U.S. 680, 715 (2024) (Kavanaugh, J., concurring) (“The first and
most important rule in constitutional interpretation is to heed the
text—that is, the actual words of the Constitution—and to inter-
pret that text according to its ordinary meaning as originally under-
stood.”). Section 1 of the Thirteenth Amendment provides that
“[n]either slavery nor involuntary servitude . . . shall exist within
the United States . . . .” U.S. CONST. amend. XII, § 1. Section 2 then
grants Congress the “power to enforce [Section 1] by appropriate
legislation.” Id., § 2
By using the word “appropriate,” the Framers conveyed an
expansive vision of Congress’s power under the amendment. They
did not pick the word “appropriate” in a constitutional vacuum. It
had a distinct legal meaning traceable to a landmark Supreme
Court opinion that Chief Justice John Marshall wrote: McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819).
In McCulloch, the Supreme Court crafted a deferential test
for courts to apply when assessing the scope of Congress’s power.
The Court considered whether Congress could create a national
bank under its Article I, Section 8, powers, including its authority
to “make all Laws which shall be necessary and proper for carrying
into Execution [its] powers . . . .” U.S. CONST. art. I, § 8, cl. 18;
McCulloch, 17 U.S. at 401. Maryland argued for a restricted reading
of “necessary and proper.” Under Maryland’s preferred test,
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22-13822 ROSENBAUM, J., Concurring 5

Congress could pass only those laws that were “indispensable” to
its duties. McCulloch, 17 U.S. at 413. But the Court rejected this
limited reading. Id.
Instead, in the most famous passage of the opinion, the
Court wrote, “Let the end be legitimate, let it be within the scope
of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional.” Id.
at 421 (emphasis added). Or in other words, so long as Congress’s
goal was constitutional, the Court would uphold any law legiti-
mately designed to accomplish Congress’s goal that the Constitu-
tion didn’t otherwise prohibit. 1 In effect, “appropriate legislation”
was almost any legislation that could be rationally understood to
enforce other constitutional provisions.
Applying this test, the Supreme Court was extremely defer-
ential to legislation that the pre-Civil War Congresses passed. In
fact, in only one case did the antebellum Supreme Court invalidate
an act of Congress after McCulloch. See United States v. Rhodes, 27 F.
Cas. 785, 793 (C.C.D. Ky. 1866); AKHIL REED AMAR, AMERICA’S CON-
STITUTION: A BIOGRAPHY 362 (2005). That case was Dred Scott, in
which the Court infamously held that Congress couldn’t ban

1 These external constitutional constraints could come from anywhere else in

the Constitution. For example, a bill of attainder or an ex post facto law
couldn’t be “appropriate legislation” because it would violate Article I, Section
9, Clause 3. Similarly, Congress couldn’t expand the scope of the Supreme
Court’s original jurisdiction because doing so would violate Article III, Section
2, Clause 2. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
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6 ROSENBAUM, J., Concurring 22-13822

slavery in the territories and Black people couldn’t be citizens.
Rhodes, 27 F. Cas. at 793; AMAR, AMERICA’S CONSTITUTION, supra, at
362. But the Reconstruction Amendments are widely understood
to have repudiated that decision. See AMAR, AMERICA’S CONSTITU-
TION, supra, at 380.

The Framers of those amendments knew that “appropriate”
meant a large grant of authority to Congress. Notably, they paid
attention to how the McCulloch test saw the antebellum Court re-
flexively uphold pro-slavery legislation. Id. at 362.
The most notorious example was Pri v. Pennsylvania, 41
U.S. (16 Pet.) 539 (1842). See AMAR, AMERICA’S CONSTITUTION, su-
pra, at 362. In that case, the Supreme Court upheld federal legisla-
tion to facilitate the return of fugitive slaves to the South. See Pri,
41 U.S. at 615–22. Before the enactment of the Thirteenth Amend-
ment, which effectively nullified it, the Fugitive Slave Clause re-
quired states to return any enslaved people to their slaveowner if
he claimed them. U.S. CONST. art. IV, § 2, cl. 3. Located in a part
of the Constitution governing the conduct of states, the Clause
says nothing of Congress’s role to enforce it. Id. But the Pri
Court held that “the national government is clothed with the ap-
propriate authority and functions to enforce it.” Pri, 41 U.S. at 615
(emphasis added). The Reconstruction amendment Framers, cit-
ing Pri, “relished the irony that [the word ‘appropriate’], which
had long been used to support proslavery congressional
laws . . . would henceforth authorize a wide assortment of
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22-13822 ROSENBAUM, J., Concurring 7

antislavery congressional laws.” AMAR, AMERICA’S CONSTITUTION,
supra, at 362.
The Jones Court recognized the centrality of McCulloch to
the language of the Thirteenth Amendment. It explained that the
Section 2 power to enact “appropriate legislation” “clothed ‘Con-
gress with power to pass all laws necessary and proper for abolishing
all badges and incidents of slavery in the United States.’” Jones, 392 U.S.
at 439 (quoting Civil Rights Cases, 109 U.S. at 20) (emphasis in origi-
nal). Therefore, Congress could do “much more” than enforce the
minimum guarantees of the amendment. Id. And the Court ended
Jones quoting a floor manager for the Civil Rights Act of 1866
(“1866 Act”), enacted using Section 2 authority, who defended the
constitutionality of the bill by “recall[ing] the celebrated words of
Chief Justice Marshall in McCulloch[.]” Id. at 443.

Put simply, the Court crafted the Jones test to be a more spe-
cific application of McCulloch for the Thirteenth Amendment. Un-
der the Jones test, we uphold a statute if Congress rationally deter-
mined the conduct it targeted to be a badge or incident of slavery.
Id. at 440–41. The “end” of all such legislation is necessarily “legit-
imate”: eliminating the vestiges of slavery. See id. at 443–44 (quot-
ing CONG. GLOBE, 39th Cong., 1st Sess. 1118 (statement of Rep.
Wilson)). And that “end . . . is defined by the Constitution itself.”
See id. at 443. So McCulloch instructs us to defer to “appropriate”
means “plainly adapted to that end.” See McCulloch, 17 U.S. at 421.
That is, we defer to Congress’s rational determination that a law
targets a “badge or incident of slavery.”
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8 ROSENBAUM, J., Concurring 22-13822

II. The history of the Reconstruction Congress supports
Jones.
The history behind the passage, ratification, and early imple-
mentation of the Thirteenth Amendment also strongly supports
Jones. As I will discuss, the Framers of the amendment envisioned
Congress at center stage enacting legislation it deemed “appropri-
ate” to eliminate slavery. These statutes could reach even beyond
the baseline judicially enforceable guarantees of the amendment.
To explain Congress’s vision, we must walk through the birth of
the Thirteenth Amendment to the first landmark piece of legisla-
tion enacted under its authority to even the emergence of the Four-
teenth Amendment.
The text of the Thirteenth Amendment was Senator Lyman
Trumbull’s brainchild. In March 1864, as Chair of the Senate Judi-
ciary Committee, he reported out of Committee the language that
was adopted and ratified. James Gray Pope, Mass Incarceration, Con-
vict Leasing, and the Thirteenth Amendment: A Revisionist View, 94
N.Y.U.L. REV. 1465, 1474 (2019) (citing CONG. GLOBE, 38th Cong.,
1st Sess. 1313 (1864) (statement of Sen. Trumbull)).
This new Thirteenth Amendment was a radical proposal.
Previous plans for the abolition of slavery, including President Lin-
coln’s proposal, called for a gradual phaseout of the institution. See
AMAR, AMERICA’S CONSTITUTION, supra, at 353–58. They also in-
cluded payment to slaveowners for their freed slaves. See id. at 357.
By contrast, Trumbull’s ratified proposal meant the immediate and
uncompensated emancipation of all slaves overnight. See id. at 360.
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22-13822 ROSENBAUM, J., Concurring 9

And under it, Congress would have authority to enact “appropriate
legislation”—any law that would survive the McCulloch test—to fa-
cilitate such a sweeping change. U.S. CONST. amend. XIII.
Trumbull’s proposal made Congress think about what it
would mean to end slavery. For years before the Thirteenth
Amendment, Americans defined “slavery” to mean much more
than merely a system where one human held another formally as
property. Instead, Americans understood slavery to be a broader
institution—one that contained many “badges and incidents”—
smaller denials of rights—that cumulatively contributed to a group
of people being unfree. See AMAR, AMERICA’S CONSTITUTION, su-
pra, at 362.
Representative William Holman of Indiana pointedly sum-
marized the importance of addressing “badges and incidents” to
uproot slavery. He said that the “[m]ere exemption from servitude
is a miserable idea of freedom. A pariah in the state, a subject but
not a citizen, holding any right at the will of the governing power.
What is this but slavery?” CONG. GLOBE, 38th Cong., 1st Sess. 2962
(statement of Rep. Holman). So because Congress had the author-
ity to enact “appropriate legislation” to end slavery, it could enact
legislation to end these “badges and incidents.” AMAR, AMERICA’S
CONSTITUTION, supra, at 362.
These “badges and incidents of slavery” that fell under the
Thirteenth Amendment’s prohibition were vast. At a minimum,
the Reconstruction Congress agreed that the Thirteenth Amend-
ment conferred certain “‘civil’ rights[,] includ[ing] the right to
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10 ROSENBAUM, J., Concurring 22-13822

make and enforce contracts; and the right to be full parties and wit-
nesses in court proceedings . . . .” See William M. Carter Jr., Race,
Rights, and the Thirteenth Amendment: Defining the Badges and Inci-
dents of Slavery, 40 U.C. Davis L. Rev. 1311, 1324 n.33; see id. at 1324
n.34 (quoting ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT
AND AMERICAN FREEDOM: A LEGAL HISTORY 45 (2004)) (noting that
Representative Martin Thayer spotlighted “the rights to enforce
contracts, sue, give evidence in court, inherit and purchase, lease,
hold, and convey real property.”); cf. Melissa L. Saunders, Equal Pro-
tection, Class Legislation, and Colorblindness, 96 MICH. L. REV. 245,
270 & n.105 (1997) (highlighting that even more moderate Recon-
struction Republicans intended to protect the “civil rights” of
newly emancipated slaves “includ[ing] the right to make and en-
force contracts; to buy, lease, inherit, hold, and convey property;
and to sue, be sued, and give evidence in court”); Jacobus tenBroek,
Thirteenth Amendment to the Constitution of the United States: Consum-
mation to Abolition and Key to the Fourteenth Amendment, 39 CAL. L.
REV. 171, 190–200 (1951) (describing Reconstruction Republicans’
belief that the Thirteenth Amendment empowered and conferred
a duty on them to protect the civil rights of emancipated slaves).
And many congressmen described these “badges and inci-
dents” in greater detail. Carter, Race, Rights, and the Thirteenth
Amendment, supra, at 1324–25 & nn. 33 & 34. For example, Senator
James Harlan suggested the amendment extended to “the lack of
respect for familial bonds, inability to hold property, denial of equal
status before the justice system, suppression of freedom of speech,
and prohibition on black[] [Americans’] ability to seek education.”
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22-13822 ROSENBAUM, J., Concurring 11

Id. at 132425 n.34. And Representative John Kasson discussed “the
right to conjugal relations, parental rights, and the right of a man
to the personal liberty.” Id. (quoting TSESIS, THE THIRTEENTH
AMENDMENT AND AMERICAN FREEDOM, supra, at 46 (2004)) (internal
quotation marks omitted). The Thirteenth Amendment doesn’t
expressly mention these rights, which sat at the outer bounds of
the system of slavery. But that Amendment gave Congress the au-
thority to enact “appropriate legislation” to end slavery. So Con-
gress could address even these more peripheral denials of freedom.
See AMAR, AMERICA’S CONSTITUTION, supra, at 362.
Even opponents of the Thirteenth Amendment recognized
this fact. They warned the Thirteenth Amendment “would give
Congress virtually unlimited power to enact laws for the protection
of [Black Americans] in every State.” Jones, 392 U.S. at 439 & n. 76
(collecting primary sources).
The Reconstruction Congress quickly put this new author-
ity to the test. Within six months of the ratification of the amend-
ment, Congress passed the Civil Rights Act of 1866. Douglas L.
Colbert, Liberating the Thirteenth Amendment, 30 HARV. C.R.-C.L.L.
REV. 1, 11 (1995); Civil Rights Act of 1866, ch. 31, 14 Stat. 27, 27–
30 (1866). Relying on its Section 2 authority, Congress guaranteed
several civil rights to eliminate what it believed to be “badges and
incidents of slavery.” Civil Rights Act of 1866, 14 Stat. at 27–30;
tenBroek, Thirteenth Amendment, supra, at 190–200 (1951). These
rights included entitlement “to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase, lease, sell, hold,
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12 ROSENBAUM, J., Concurring 22-13822

and convey real and personal property, and to full and equal benefit
of all laws and proceedings for the security of person and property,
as is enjoyed by white citizens.” Jones, 392 U.S. at 422 (quoting Civil
Rights Act of 1866, 14 Stat. at 27).
The statute, and the debate surrounding it, reflected what
the Reconstruction Era Framers thought to be the scope of Con-
gress’s Section 2 authority. And the Jones Court, in reaching its de-
cision, paid particular attention to this historical episode to craft a
framework faithful to its lessons. See id. at 439–44.
The 1866 Act primarily aimed to grant citizenship to all peo-
ple born on American soil who were not subject to a foreign power.
See Civil Rights Act of 1866, 14 Stat. at 27. It represented a swift
congressional response to both state persecution, in the form of
the Black Codes, and private violence against newly freed slaves.
Douglas L. Colbert, Liberating the Thirteenth Amendment, supra, at
11–15 (1995). Congressman Martin Thayer described the senti-
ment in Congress succinctly. He said, “[W]hen I voted for the
amendment to abolish slavery . . . I did not suppose that I was of-
fering [African Americans] . . . a mere paper guarantee. And when
I voted for the second section of the amendment, I felt . . . certain
that I had . . . given to Congress ability to protect . . . the rights
which the first section gave . . . .” Jones, 392 U.S. at 433–34 (quoting
CONG. GLOBE, 39th Cong., 1st Sess. 1151 (1866) (statement of Rep.
Thayer)).
The most thorough articulation of Congress’s authority un-
der the Thirteenth Amendment came from Senator Trumbull, the
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22-13822 ROSENBAUM, J., Concurring 13

man who introduced the words that became the amendment itself.
As Jones discusses extensively, Trumbull gave a speech on the floor
of the Senate defending Congress’s authority to pass the Civil
Rights Act. See id. at 440 (quoting CONG. GLOBE, 39th Cong., 1st
Sess. 322 (1866) (statement of Sen. Trumbull)).
He began by referencing the state-sponsored violent back-
lash to the Thirteenth Amendment. Id. Trumbull proclaimed to
his colleagues, “[T]he trumpet of freedom that we have been blow-
ing throughout the land has given an ‘uncertain sound,’ and the
promised freedom is a delusion.” Id. With these words, Trumbull
led the way for Congress to use its broad Section 2 authority to
enshrine more extensive civil-rights protections for the newly freed
slaves.
Section 2, Trumbull reasoned, allowed Congress to “de-
stroy all these discriminations in civil rights against the black
man . . . .” Id. He explained that “if [Congress] cannot” address
widespread racial discrimination under Section 2, “our constitu-
tional amendment amounts to nothing.” Id. In fact, he said the
country adopted Section 2 for the “purpose” of giving Congress
the power to eliminate racial discrimination if it so chose. Id.
Then Trumbull highlighted from the text of Section 2 that
“Congress shall have authority, by appropriate legislation, to carry
into effect the article prohibiting slavery.” Id. With that, Trumbull
laid out the Framers’ vision for the scope of Section 2. Echoing the
expansive McCulloch standard, he asked, “Who is to decide what
that appropriate legislation is to be?” And he answered, “The
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14 ROSENBAUM, J., Concurring 22-13822

Congress of the United States; and it is for Congress to adopt such
appropriate legislation as it may think proper, so that it be a means
to accomplish the end.” Id. (emphasis added).
This speech was the central inspiration behind the Jones test.
The Court quoted this speech at length and then concluded that
Senator Trumbull’s understanding of the Thirteenth Amendment
was the correct one:
Surely Senator Trumbull was right.
Surely Congress has the power under
the Thirteenth Amendment rationally
to determine what are the badges and
the incidents of slavery, and the author-
ity to translate that determination into
effective legislation.
Id. at 440-41. In short, the Court had Trumbull’s vision top of mind
when it designed the Jones test.
But Trumbull wasn’t alone in his vision. As we’ve discussed,
Representative Wilson, a floor manager for the Civil Rights Act of
1866, explained how the McCulloch standard authorized the statute
under the Thirteenth Amendment. See id. at 443. And Senator Ja-
cob Howard, a member of the Senate Judiciary Committee when
the Thirteenth Amendment was proposed, whistled the same tune
in the Senate. See CONG. GLOBE, 39th Cong., 1st Sess. 503–04 (1866)
(statement of Sen. Howard). Indeed, the Jones Court also cited this
speech. See Jones, 392 U.S. at 440 n.77.
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22-13822 ROSENBAUM, J., Concurring 15

Howard’s speech further shows that the Thirteenth Amend-
ment gave Congress wide discretion to eradicate the “badges and
incidents of slavery.” As Howard explained things, the Framers ex-
pected state governments to use “all the[ir] powers . . . in restrain-
ing and circumscribing the rights and privileges” of recently freed
slaves. CONG. GLOBE, 39th Cong., 1st Sess. 503 (1866) (statement
of Sen. Howard). Among these rights were “earning and purchas-
ing property; . . . having a home . . . having a wife and family,
[and] . . . eating the bread he earns . . . .” Id. at 504. This is why,
Howard explained, the Thirteenth Amendment prohibited an ex-
pansive scope of “badges and incidents of slavery” beyond mere
formal abolition. And the amendment empowered Congress to
“look after [freed slaves’] well-being” to prevent a “mockery of
emancipation.” Id. at 503. So the 1866 Act was constitutional. Id.
at 504.
Even so, not all in Washington were receptive to Trumbull
and Howard’s view. Fiercely resistant to Reconstruction, Demo-
crats in Congress rebuked the Framers’ expansive vision of the
Thirteenth Amendment’s authority. See Jones, 392 U.S. at 439 n.75
(collecting statements). Many opponents of the bill cited the Su-
preme Court’s pre-Civil War decision in Dred Scott that free Black
people could not be citizens. Rebecca E. Zietlow, Congressional En-
forcement of Civil Rights and John Bingham’s Theory of Citizenship, 36
AKRON L. REV. 717, 732 (2003).
But their views offer little insight into the public’s true un-
derstanding of the amendment. After all, only months before, they
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16 ROSENBAUM, J., Concurring 22-13822

argued that the Thirteenth Amendment should not be ratified be-
cause it reached all sorts of discrimination that Black Americans
faced. See Jones, 392 U.S. at 439 n.76 (collecting statements). Then,
with the adoption of the amendment and the passing of the 1866
Act, they suddenly developed a new restricted reading of the text
to defeat the Act.
Still, in President Johnson, these Reconstruction opponents
had an ally. President Johnson opposed the bill that became the
1866 Act, decrying it as unconstitutional. But he also held racist
personal beliefs that certain groups should not have citizenship. So
he vetoed the act on both grounds. See CONG. GLOBE, 39th Cong.,
1st Sess. 1679–81 (1866) (message of Pres. Johnson).
In his veto message, Johnson criticized Congress for grant-
ing citizenship to “the Chinese of the Pacific States, Indians subject
to taxation, the people called Gypsies, as well as the entire race des-
ignated as blacks, people of color, negroes, mulattoes, and persons
of African blood.” Id. at 1679. He questioned whether it can “be
reasonably supposed that [freed slaves] possess[ed] the requisite
qualifications to entitle them to all the privileges and immunities
of citizens of the United States[.]” Id. And he complained that “a
perfect equality of the white and black races is attempted to be
fixed by Federal law, in every State of the Union, over the vast field
of State jurisdiction covered by these enumerated rights.” Id. at
1679–80. In his view, the bill was “another step, or rather stride,
toward centralization and the concentration of all legislative
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22-13822 ROSENBAUM, J., Concurring 17

powers in the national Government.” Id. at 1681. And he thought
the Thirteenth Amendment couldn’t justify it. Id.
At bottom, by 1866, four months after the ratification of the
Thirteenth Amendment, President Johnson saw Section 2 as virtu-
ally a dead letter. See id. In his view, “[s]lavery ha[d] been abol-
ished,” and only if an attempt to revive it occurred would it be “the
duty of the General Government to exercise any and all incidental
powers necessary and proper to maintain inviolate this great con-
stitutional law of freedom.” Id.
But it was President Johnson’s message that turned out to be
the dead letter. Congress resoundingly rejected his critiques. And
for the first time in American history, it overrode the President’s
veto on a major piece of legislation—the 1866 Act. AMAR, AMER-
ICA’S CONSTITUTION, supra, at 362. The vote was not close.2 So the
Act became law. Faced with Johnson’s restricted reading and Trum-
bull’s authoritative vision, Congress resoundingly sided with
Trumbull. We should not abandon Jones in favor of a framework
that better aligns with the views of Johnson and the 1866 Demo-
crats.
To be sure, a minority of lawmakers continued to argue that
the Civil Rights Act of 1866 was unconstitutional, including a tiny
subset of Republicans. Most notable among them was John

2 The Senate voted to override President Johnson’s veto by a vote of 33 to 15

with 1 absent just 10 days after the President returned the bill. CONG. GLOBE,
39th Cong., 1st Sess. 1809 (1866). The House followed suit three days later by
a vote of 122 to 41 with 21 abstaining. Id. at 1861.
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18 ROSENBAUM, J., Concurring 22-13822

Bingham, the father of Section 1 of the Fourteenth Amendment.
Zietlow, Congressional Enforcement, supra, at 735.
But Bingham’s view is relevant to the interpretation of the
Thirteenth Amendment only to the same extent as any member of
the public in 1865. He was not in Congress when Congress pro-
posed and passed the Act. 3 Still, he believed in Trumbull’s goals for
the Civil Rights Act, namely that the Federal Bill of Rights would
be enforced “everywhere.” 4 Id. So when the Fourteenth Amend-
ment was proposed, he and his allies in Congress took the oppor-
tunity to shore up doubts about Congress’s authority under the
Thirteenth Amendment to enact the 1866 Act. Id. And because
the history and text of the Fourteenth Amendment provide nearly
contemporaneous evidence that the Thirteenth Amendment
widely empowers Congress to enact legislation addressing what it
rationally determines to be the “badges and incidents of slavery,” I
take a moment to review that history and text.
Of course, today, the Fourteenth Amendment begins with
the clause that “[a]ll persons born or naturalized in the United

3 Bingham lost reelection in the midterm election of 1862. Richard L. Aynes,
The Antislavery and Abolitionist Background of John A. Bingham, 37 CATH. U. L.
REV. 881, 930 (1988). So he was not a member of the 38th Congress, which
passed the Thirteenth Amendment on January 31, 1865. See CONG. GLOBE,
38th Cong., 2nd Sess. 531 (1865). He returned to office in March 1865, after
he was reelected to the 39th Congress. See Aynes, The Antislavery and Aboli-
tionist Background of John A. Bingham, supra, at 930 n.393.
4 Bingham ultimately abstained from the vote on the 1866 Act. See CONG.
GLOBE, 39th Cong., 1st Sess. 1861 (1866)
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States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.” U.S. CONST.
amend. XIV, § 1. Senator Howard introduced this Citizenship
Clause. And he described it “as largely ‘declaratory’ of existing law,
including the 1866 Act.” United States v. Vaello Madero, 596 U.S. 159,
175 (2022) (Thomas, J., concurring) (citing CONG. GLOBE, 39th
Cong., 1st Sess. 2890 (statement of Sen. Howard)). But its inclusion
also “forever closed the door on Dred Scott” and “constitutionalized
the Civil Rights Act of 1866.” Id. (citation omitted).
Congress paired the Citizenship Clause with Section 5 of the
Fourteenth Amendment, which provides that “Congress shall have
power to enforce, by appropriate legislation” the amendment. U.S.
CONST. amend. XIV, § 5. By writing Section 5 of the Fourteenth
Amendment to include nearly identical language to that of Section
2 of the Thirteenth Amendment, Congress intended to give itself
the same sweeping authority to enforce the Citizenship Clause as
it gave itself to enforce the Thirteenth Amendment. AMAR, AMER-
ICA’S CONSTITUTION, supra, at 363; see also Steven A. Engel, Note,
The McCulloch Theory of the Fourteenth Amendment: City of Boerne
v. Flores and the Original Understanding of Section 5, 109 YALE L.J. 115
(1999). Plus, in debates over the Fourteenth Amendment, Repub-
licans repeatedly invoked McCulloch and Pri, hammering home
that the Supreme Court’s doctrine, after which they modeled Sec-
tion 5, promised broad judicial deference to Congress’s exercise of
its powers. AMAR, AMERICA’S CONSTITUTION, supra, at 363.
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20 ROSENBAUM, J., Concurring 22-13822

And once more, the American people ratified the Recon-
struction Congress’s proposal. So in effect, for the few who read
the Thirteenth Amendment narrowly, the Fourteenth Amendment
constitutionalized Trumbull’s vision for congressional power to
eradicate the “badges and incidents of slavery.” See id. The public
twice affirmed Trumbull’s vision, and in doing so, twice approved
of the framework Jones adopted. That is, Congress has the author-
ity “rationally to determine what are the badges and the incidents
of slavery, and the authority to translate that determination into
effective legislation.” Jones, 392 U.S. at 440.
In sum, then, the Reconstruction Congress that passed the
Thirteenth Amendment understood its authority under Section 2
to be broad. So did the immediately succeeding Congress, which
passed the Civil Rights Act of 1866 and the Fourteenth Amend-
ment. And the Jones framework accurately encapsulates the Fram-
ers’ vision of judicial deference to Congress’s rational Thirteenth
Amendment legislation.
III. Judicial decisions immediately after the ratification
of the Thirteenth Amendment confirm the correct-
ness of Jones.
The fight over the constitutionality of the Civil Rights Act
of 1866 did not end with its passage. Immediately after the bill be-
came law, legal challenges emerged contesting its constitutionality.
See, e.g., Rhodes, 27 F. Cas. at 785; In re Turner, 24 F. Cas. 337 (C.C.D.
Md. 1867). Two Justices riding circuit opined on the scope of
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22-13822 ROSENBAUM, J., Concurring 21

Congress’s Section 2 authority. See Rhodes, 27 F. Cas at 785; In re
Turner, 24 F. Cas at 339. Both their opinions support the Jones
framework.
The first to address the 1866 Act was Justice Noah Swayne,
the first Justice that President Lincoln appointed to the Supreme
Court. William D. Bader & Frank J. Williams, David Davis: Lawyer,
Judge, and Politician in the Age of Lincoln, 14 ROGER WILLIAMS U. L.
REV. 163, 185 (2009). Riding circuit in Kentucky, he heard United
States v. Rhodes. There, a state court denied a Black woman the
right to testify against the four white men who attacked her and
burglarized her home. Rhodes, 27 F. Cas. at 785–86. The defendants
argued that their indictment was “fatally defective” because the
Civil Rights Act of 1866, under which they were charged, was “un-
constitutional and void.” Id. at 785.
Justice Swayne disagreed. He offered a thorough account of
how the Thirteenth Amendment transformed our Constitution
and broadly empowered Congress. He explained that before Re-
construction, the Founders “saw many perils of evil in the center
[of government], but none elsewhere.” Id. at 788. “They feared
tyranny in the head, not anarchy in the” states. Id. So particularly
with the first eleven amendments, he observed, the Constitution
preserved the rights of the states from federal encroachment. Id.
But the Thirteenth Amendment marked a departure from
those protections for states. Justice Swayne noted that amendment
came after the “throes and convulsions of a civil war.” Id. And the
conflict that set the stage for the amendment laid bare the need to
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22 ROSENBAUM, J., Concurring 22-13822

protect against state efforts to preserve slavery. So, Justice Swayne
explained, the Framers “sought security against the recurrence of
a sectional conflict.” Id. In doing so, they were “impelled by a sense
of right and by a strong sense of justice . . . .” Id. For the first time
in American history, the American people ratified an amendment,
which “trenche[d] directly upon the power of the states and of the
people of the states.” Id.
Against this backdrop, Justice Swayne understood that
courts had to be deferential to an empowered Congress exercising
Section 2 authority. Or, he thought, courts needed to be at least as
deferential as they had been to the use of other powers under the
lenient McCulloch test. Justice Swayne quoted at length from
McCulloch. Id. at 791. And he noted that “Chief Justice Marshall
used the phrase ‘appropriate’ as the equivalent and exponent of
‘necessary and proper’ . . . .” Id. Then Justice Swayne cited Justice
Story’s interpretation of McCulloch. Id. at 792. For his part, Justice
Story, the author of Pri, 41 U.S. at 608, saw Congress as having “a
wide discretion” and “considerable latitude” to choose “appropri-
ate” means because the connection between means and ends “is
not always so direct and palpable as to strike the eye of every ob-
server.” Rhodes, 27 F. Cas. at 792.
In fact, Justice Swayne concluded that “an act of congress is
not to be pronounced unconstitutional unless the defect of power
to pass it is so clear as to admit of no doubt.” Id. at 793. That’s so,
he reasoned, because “[a] remedial power in the constitution is to
be construed liberally.” Id. (quoting Chisholm v. Georgia, 2 U.S. (2
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22-13822 ROSENBAUM, J., Concurring 23

Dall.) 419, 476 (1793)). And he recognized that the Supreme Court
up until that point had only three times invalidated acts of Con-
gress. 5 Id.
Applying this liberal standard to the Thirteenth Amend-
ment, Justice Swayne upheld the constitutionality of the Civil
Rights Act. Id. at 794. He first noted the wide expanse of the Thir-
teenth Amendment, which protects people of “every race, color,
and condition” against present and “the recurrence” of slavery
“without limit of time or space.” Id. at 793. And Section 2, “em-
ploy[ing] a phrase which had been enlightened by well-considered
judicial application” in McCulloch, allowed Congress to select “ap-
propriate” means that courts could strike down only “when the au-
thority given has been clearly exceeded . . . .” Id.
The Civil Rights Act easily cleared this low bar. The Thir-
teenth Amendment allowed Congress to address badges and inci-
dents of slavery like those that the 1866 Act targeted. See id. at 793–
94. Otherwise, the emancipation “would have been a phantom of
delusion.” Id. Justice Swayne explained that without Congress’s
ability to correct badges and incidents of slavery, “[l]egislative op-
pression would have been increased in severity,” and “[u]nder the
guise of police and other regulations slavery would have been in

5 Those three decisions were Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),

Dred Scott, 60 U.S. 393, and Ex parte Garland, 71 U.S. (4 Wall.) 334 (1866). But
Marbury was decided before McCulloch, and Ex Parte Garland issued after the
ratification of the Thirteenth Amendment. So the universally disparaged Dred
Scott was the only antebellum decision where the Court arguably found a stat-
ute failed the McCulloch test.
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24 ROSENBAUM, J., Concurring 22-13822

effect restored . . . .” Id. So, Justice Swayne pointed out, Section 2
“was intended to give expressly to congress the requisite author-
ity

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11144358. Public record. Not legal advice.