Amicus Curiae Brief — Randy Joe Metcalf, Petitioner v. United States

No. 17-9340

In the

Supreme Court of the United States

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

RANDY JOE METCALF,

Petitioner,

v.

UNITED STATES,

Respondent.

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

BRIEF AMICUS CURIAE OF

THE CENTER FOR EQUAL OPPORTUNITY

IN SUPPORT OF PETITIONER

൞൞൞൞൞൞൞൞൞൞൞൞i൞൞൞൞൞൞൞൞൞൞൞൞൞

John J. Park, Jr.

Counsel of Record for

Amicus Curiae

Strickland Brockington Lewis LLP

1170 Peachtree Street NE

Suite 2200

Atlanta, GA 30309

678.347.2208

jjp@sbllaw.net

i

QUESTION PRESENTED

Whether the Thirteenth Amendment provides

Congress with unlimited power to enact hate-crimes

legislation encompassing acts entirely unrelated to

“badges and incidences of slavery.”

ii

TABLE OF CONTENTS

Question Presented

i

Table of Contents

ii

Table of Authorities

iii

Identity and Interest of Amicus Curiae

1

Summary of Argument

2

Reasons for Granting This Writ

7

While this Court has been carefully refining

its

Fourteenth

and

Fifteenth

Amendment

jurisprudence with regard to congressional

authority, Thirteenth Amendment jurisprudence has

fallen into serious disrepair

7

A. In Jones, a serious error in the

interpretation of a Reconstruction era statute

may have colored our sense of what the Thirteenth

Amendment was intended to cover

7

B. The Thirteenth Amendment is about

eradicating slavery and involuntary servitude, not

about eradicating the badges and incidents of

slavery. The latter may be outlawed only as a means

to the eradication of slavery and involuntary

servitude. Insofar as Jones holds otherwise, it should

be overruled

17

Conclusion

24

iii

TABLE OF AUTHORITIES

Cases

Bailey v. Alabama, 219 U.S. 219 (1911)

City of Boerne v. Flores, 521 U.S. 507

(1997)

22

passim

Cannon v. United States, No. 14-5356, in the

Supreme Court of the United States

3

Hodges v. United States, 203 U.S. 1

(1906)

7

Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968)

passim

Katzenbach v. Morgan, 384 U.S. 641

(1966)

2

McCulloch v. Maryland, 17 U.S. 316 (1819)

19

Patterson v. McLean Credit Union, 491 U.S.

164 (1989)

14

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265

(1978)

20

Runyon v. McCrary, 427 U.S. 160 (1976)

13

Shelby County v. Holder,

570 U.S. 529 (2013)

passim

iv

South Carolina v. Katzenbach, 383 U.S. 301

(1966)

The Civil Rights Cases, 109 U.S. 3

(1883)

2,4

7,20,21

United States v. Cannon, 750 F. 3d 492

(5th Cir. 2014)

2

United States v. Hatch, 722 F. 3d 1193

(10th Cir. 2013)

2

Constitutional Provisions

Thirteenth Amendment

passim

Fourteenth Amendment

passim

Fifteenth Amendment

passim

Nineteenth Amendment

18

Twenty-Third Amendment

18

Twenty-Fourth Amendment

18

Twenty-Sixth Amendment

18

Twenty-Eighth Amendment

18

Statutes

42 U.S.C. § 1981

13

42 U.S.C. § 1982

passim

v

18 § U.S.C. 249(a)(1) of the HCPA

passim

Matthew Shepard and James Byrd Jr.

Hate Crimes Prevention Act, P.L. No.

111-84, 123 Stat. 2190 (2009), div. E,

§ 4702, §§ 7, 8

4, 23

Civil Rights Act of 1875, 18 Stat. 335 (1875)

16,20

Rules

Sup. Ct. R. 37.2(a)

1

Sup. Ct. R. 37.6

1

Other Authorities

Cong. Globe, 38th Cong., 1st Sess. 553 (1864)

19

Cong. Globe, 38th Cong., 2d Sess. 214 (1865)

19

H.R. 3980, 115th Congress

6

Miss. Black Code (1865)

9,22

N.Y. Married Women’s Property Act, 1848

N.Y. Laws ch. 200

9

Report of the National Advisory Commission on Civil

Disorders

12

S. Res. 118, 115th Congress

6

vi

Publications

Ben W. Gilbert, et al., Ten Blocks from the White

House: Anatomy of the Washington Riots of

1968 (1968)

12

Charles Fairman, 6 History of the Supreme Court

of the United States: Reconstruction and

Reunion, 1864-88, 1258 (Macmillan 1971)

8

Gail Heriot & Alison Somin, Sleeping Giant?:

Section Two of the Thirteenth Amendment,

Hate Crimes Legislation and Academia’s

Favorite New Vehicle for the Expansion of

Federal Power, 13 Engage 31

(October 2012)

4

Gerhard Casper, Jones v. Mayer: Clio, Bemused

and Confused Muse, 1968 Sup. Ct. Rev. 89

(1968)

3

Jennifer Mason McAward, The Scope of Congress’s

Thirteenth Amendment Enforcement Power,

88 Wash. U. L. Rev. 77 (2010)

3

Letter from Lyndon Baines Johnson to Speaker

John W. McCormick (Apr. 5, 1968)

13

1

IDENTITY AND INTEREST OF AMICUS

CURIAE

The Center for Equal Opportunity (“CEO”) is

a research and educational organization formed

pursuant to Section 501(c)(3) of the Internal

Revenue Code and devoted to issues of race and

ethnicity. 1

Its

fundamental

vision

is

straightforward: America has always been a

multiethnic and multiracial nation, and it is

becoming even more so. This makes it imperative

that our national policies not divide our people

according to skin color and national origin. Rather,

these policies should emphasize and nurture the

principles that unify us. E pluribus unum . . . out of

many, one.

CEO hopes that the following thoughts on

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)—a

key case interpreting Congress’s power under

Section 2 of the Thirteenth Amendment—will be of

1 Pursuant to this Court’s Rule 37.2(a), all parties have

consented to the filing of this brief. Counsel of record for all

parties received notice at least 10 days prior to the due date of

the Amici Curiae’s intention to file this brief. Communications

evidencing such consent have been filed with the Clerk of the

Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no

counsel for any party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than Amicus Curiae or its counsel made a monetary

contribution to the brief’s preparation or submission.

2

some small assistance

deliberations.

to

the

Court

in

its

SUMMARY OF ARGUMENT

In 2014, there was good reason for Judge

Elrod to write, with her characteristic judicial

modesty, that the courts “would benefit from

additional guidance from the Supreme Court” in

reconciling the conflicting precedents in this case.

United States v. Cannon, 750 F. 3d 492, 509 (5th

Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 709 (2014)

(Elrod, J. specially concurring with her own opinion

for the panel). In so writing, Judge Elrod is not

alone. Judge Tymkovich expressed similar thoughts

in his opinion for the panel in United States v.

Hatch, when he wrote that defendants’ “arguments

raise important federalism questions” which “in light

of Jones, it will be up to the Supreme Court” to

resolve. United States v. Hatch, 722 F. 3d 1193, 1201

(10th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct.

1538 (2014). The case law is indeed in need of

attention.

Almost fifty years ago, a trio of cases accorded

an extraordinary level of judicial deference to

Congress in defining the limits of its own power

under the Reconstruction Amendments—or at least

that is how they have been interpreted. Two of them

have since undergone serious refinement and

clarification. Katzenbach v. Morgan, 384 U.S. 641

(1966)(Fourteenth

Amendment)

has

been

substantially modified by City of Boerne v. Flores,

521 U.S. 507 (1997). Similarly, South Carolina v.

Katzenbach,

383

U.S.

301

(1966)(Fifteenth

3

Amendment) has been clarified by Shelby County v.

Holder, 570 U.S. 529 (2013).

The third case in the trio is also arguably the

most in need of refinement and clarification—Jones

v. Alfred H. Mayer Co., 392 U.S. 409 (1968). See,

e.g., Gerhard Casper, Jones v. Mayer: Clio, Bemused

and Confused Muse, 1968 Sup. Ct. Rev. 89

(1968)(“Confused Muse”)(criticizing Jones); Jennifer

Mason McAward, The Scope of Congress’s Thirteenth

Amendment Enforcement Power, 88 Wash. U. L. Rev.

77 (2010)(stating that “the time is ripe to reconsider

Jones and the proper scope of Congress’s Thirteenth

Amendment enforcement power”).

Jones

(or

rather

an

unnecessary

interpretation of Jones) is the keystone of the Eighth

Circuit’s decision in this case. As the court

explained, in rejecting another challenge to the

constitutionality of 18 U.S.C. § 249(a)(1), it

“[a]dopt[ed]” this Court’s analysis in Jones. Pet. App.

at 5. In so doing, it treated it as settled law that

Congress has the power to “rationally [] determine

what are the badges and incidents of slavery,” Id.

(quoting Jones, 392 U.S. at 439-40), even in cases in

which it is clear that these badges and incidents are

being prohibited for their own sake and not for the

sake of eliminating slavery or preventing its return.

Gail Heriot and Peter Kirsanow, Members of

the U.S. Commission on Civil Rights submitted an

amicus brief in support of the petitioner. Cannon v.

United States, No. 14-3536, in the Supreme Court of

the United States. In that brief, they presented the

core arguments why Section 249(a)(1) of the

4

Matthew Shepard and James Byrd, Jr. Hate Crimes

Prevention Act of 2009 (“the HPCA”), Pub. L. No.

111-84, 123 Stat. 2835 (2009), is not a proper

exercise of Congress’s authority under Section 2 of

the Thirteenth Amendment. See also Gail Heriot &

Alison Somin, Sleeping Giant?: Section Two of the

Thirteenth Amendment, Hate Crimes Legislation

and Academia’s Favorite New Vehicle for the

Expansion of Federal Power (“Heriot & Somin”), 13

Engage 31 (October 2012).

This brief is intended to supplement those

arguments by discussing some of Jones’s

shortcomings. CEO agrees with the Commissioners’

Brief that Jones is distinguishable from this case

and need not be challenged head on, since it

interpreted a Reconstruction Era statute that was

actually aimed at eradicating slavery and preventing

its return. Indeed, this case is to Jones as Shelby

County is to South Carolina v. Katzenbach. Like the

Civil Rights Era statute in South Carolina v.

Katzenbach, the Reconstruction Era statute

construed in Jones was promulgated when the threat

it was designed to deal with was at its height. Like

the 2006 statute in Shelby County, which was passed

long

after

the

Fifteenth

Amendment

disfranchisement threat had been brought under

control, the HPCA in this case was passed long after

the Thirteenth Amendment successfully rid the

nation of chattel slavery. Just as South Carolina v.

Katzenbach was not overruled by Shelby County,

Jones need not be overruled for petitioners to prevail

in this case.

5

Nevertheless, Jones’ shortcomings are serious

enough and have led Thirteenth Amendment

jurisprudence sufficiently astray that they should be

addressed in some form. Arguably, Jones is at the

root of the doctrinal confusion that Judge Elrod

encouraged this Court to address.

This brief

therefore discusses:

(1)

why Jones was incorrectly decided

as

a

matter

of

statutory

interpretation and how that error

has infected subsequent discussions

of Congress’s authority under

Section 2 of the Thirteenth

Amendment; and

(2)

why, if Jones is interpreted to allow

Congress both wide latitude to

determine what the “badges and

incidents” of slavery are and the

authority to prohibit those badges

and incidents untethered to any goal

of banning slavery itself or

preventing its return (as the

Department of Justice urges), then

Jones is simply inconsistent with the

Constitution and must be overruled.

To all this, CEO adds that the federal courts

are not alone in needing guidance on the scope of

Congress’s power under Section 2 of the Thirteenth

Amendment. Congress could also benefit because it

has had several bills before it that purport to rely on

an overbroad interpretation of its Thirteenth

Amendment powers. See Heriot & Somin, 13 Engage

6

at 35-36. In the 1st Session of the current Congress,

a bill seeking the establishment of a U.S.

Commission on Hate Crimes was introduced in the

House of Representatives. See H.R. 3980, 115th

Congress; see also S. Res. 118, 115th Congress

(resolution condemning hate crimes). By addressing

this issue now, the Court can guide Congress along a

constitutional path.

No case in the pipeline will present the issue

of the constitutionality of the HCPA’s Section

249(a)(1) more squarely. Indeed, future cases may

involve high-profile facts that have no bearing on,

and thus distract from, the legal issues. Those facts

may nevertheless figure prominently in public

discourse. The best time to address the issue is

now—when the underlying crime being examined

did not result in death or grave injury.

More input from the Courts of Appeals will

not be forthcoming. The Eighth Circuit has joined

the Tenth and the Fifth in holding that their hands

are tied by the Jones decision and that stare decisis

prevents them from adapting non-Thirteenth

Amendment refinements like City of Boerne and

Shelby County v. Holder to the Thirteenth

Amendment context. Only this Court can reexamine

Jones in the light of the passage of 50 years.

7

REASONS FOR GRANTING THIS WRIT

WHILE THIS COURT HAS BEEN CAREFULLY

REFINING ITS FOURTEENTH AND

FIFTEENTH AMENDMENT JURISPRUDENCE

WITH REGARD TO CONGRESSIONAL

AUTHORITY, THIRTEENTH AMENDMENT

JURISPRUDENCE HAS FALLEN INTO

SERIOUS DISREPAIR.

A. In Jones, a Serious Error in the

Interpretation of a Reconstruction Era

Statute May Have Colored Our Sense of

What the Thirteenth Amendment Was

Intended to Cover.

It is logical to look to the statutes that were

passed pursuant to the Thirteenth Amendment

immediately after ratification to get a sense of what

that amendment was understood to mean at the

time. But the interpretation given to the Civil

Rights Act of 1866 (the “1866 Act”) a century later in

Jones was mistaken. 2

And it is not just Justice

Harlan (joined by Justice White) in dissent who has

thought so. See, e.g., Confused Muse supra at 100 (“I

am afraid the Court’s approach in Jones v. Mayer

represents a combination of … creation by

authoritative revelation and ‘law-office’ history.”).

See also Charles Fairman, 6 History of the Supreme

2

CEO notes that Jones is inconsistent with decisions closer in

time with the adoption of the Thirteenth Amendment that

interpreted its scope much more narrowly that Jones does. See

Hodges v. United States, 203 U.S. 1 (1906); The Civil Rights

Cases, 109 U.S. 3 (1883).

8

Court of the United States: Reconstruction and

Reunion, 1864-88, 1207, 1258 (Macmillan 1971)(“In

Jones v. Mayer, the Court … allowed itself to believe

impossible

things—as

though

the

dawning

enlightenment of 1968 could be ascribed to the

Congress of a century agone.”).

That may be water under the bridge when it

comes to that statute (which is not at issue in this

case). But insofar as it colors the modern sense of

what the 38th Congress intended the Thirteenth

Amendment to authorize, it is worth reflecting upon.

The 1866 Act contained the following passage:

[A]ll persons … shall have the same

right, in every State and Territory … to

make and enforce contracts, to sue, be

parties, and give evidence, to inherit,

purchase, lease, sell, hold, and convey

real and personal property … as is

enjoyed by white citizens ….

This statute was almost certainly about the

legal capacity to contract and the legal capacity to

own and convey property—privileges slaves didn’t

have in the antebellum South. While we tend to

take these rights for granted—to the point of their

being almost invisible—they are anything but

unimportant. 3

A person who cannot make

3

In the mid-nineteenth century one of the most

significant issues to face the nation was the legal capacity of

married women to contract and to own and convey property.

See, e.g., N.Y. Married Women’s Property Act, 1848 N.Y. Laws

9

contracts—and both sue and be sued for breach—

cannot borrow money from a bank. A person who

cannot own and convey property cannot own a farm

or even a home. Such persons therefore must be

dependent on others, and likely work as

sharecroppers or wage laborers. They may end up

trapped in relationships that for many practical

purposes are slavery.

In the immediate period after the Civil War,

many members of Congress considered it a priority

to ensure that recently freed slaves had the legal

capacity to contract and to purchase, own and convey

property. They feared that recently enacted Black

Codes would essentially re-impose slavery through

the back door, and they wanted to prevent it. See,

e.g., Miss.

Black Code (1865)(prohibiting “any

freedman, free negro or mulatto” from renting or

leasing lands outside “incorporated cities or towns”).

But the legal capacity to purchase property is

emphatically not the same thing as the right to

insist that others agree to sell. To view the question

otherwise would be akin to saying that a “right to

marry” encompasses the right to marry someone who

doesn’t wish to marry you. Hardly anyone would be

reckless enough to make the latter argument.

ch. 200 at 307. It was thus natural for this issue to come up in

1866 in the context of recently freed slaves. No one has

interpreted these laws, which overruled the common law’s

insistence that a married couple was a single legal entity

headed by the husband, to prohibit private discrimination

against married women vis-à-vis married men or vis-à-vis

single women (both of whom traditionally had legal capacity

under the common law).

10

In his message vetoing the 1866 Act,

President Andrew Johnson stated that these matters

“relate to the internal policy and economy of the

respective States.” That message shows that he

understood the statute to require states to treat

African Americans the same as whites on matters of

legal capacity and not to require private individuals

to refrain from race discrimination. He stated that

the effect of the statute would be that nowhere “can

any State exercise any power of discrimination

between different races.” (Emphasis added.) Andrew

Johnson, Veto of the Civil Rights Bill (March 27,

1866) in Lillian Foster, Andrew Johnson: His Life

and Speeches (1866).

Johnson’s view was evidently that Section 2 of

the Thirteenth Amendment gave Congress only the

authority to prohibit slavery itself. The 1866 Act

was thus unconstitutional because a denial of the

right to own and convey property was not itself

slavery. By contrast, the majority in Congress

apparently thought that both the legal capacity to

contract and the legal capacity to own and convey

property were among the legal incidents that made

slavery a viable institution and hence could be

prohibited as part of the effort to ban slavery and

keep it from re-emerging. Johnson’s view was a

narrow view of Section 2 authority, but it illustrates

where the debate was taking place in 1866: There

was doubt in the White House that Congress had

any prophylactic power under Section 2. On the

other hand, members of Congress evidently believed

that it had a least some measure of prophylactic

power when applied to the legal incidents of slavery.

11

Congress overrode Johnson’s veto weeks later

by a vote of 33-15 in the Senate and 122-41 in the

House of Representatives. But concern over the

1866 Act’s constitutionality remained. Four years

later, as an extra precaution against this concern,

Congress re-enacted the statute as part of the Civil

Rights Act of 1870 (also known as the Enforcement

Act of 1870), 16 Stat. 140 (1870). In the interim, the

Fourteenth Amendment had been ratified, which

conferred on Congress authority it had not had in

1866 and thus bolstered the argument for the

statute’s constitutionality.

A century later, when Jones reached the

Supreme Court, the relevant part of the 1866 Act

had long been codified at 42 U.S.C. § 1982 and read:

All 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.

Joseph Lee Jones, an African American, and

his wife brought the lawsuit against a Missouri real

estate developer for refusing to sell them a home on

account of Mr. Jones’ race. At the time, however,

Missouri had no law against private race

discrimination in the sale of real estate. The Fair

Housing Act of 1968, Pub. L. 90-284, 82 Stat. 73

(1968), was not passed by Congress until a week

after their case was argued before this Court.

Instead, their case was premised on § 1982, which

12

they argued should be interpreted to prohibit race

discrimination by private parties to a sale, rather

than as a mere prohibition on state statutes and

practices that make racial distinctions with regard

to the legal capacity to own and convey property.

Surprisingly, the Court agreed. 4

As Heriot and Somin note, “Contemporary news

events are not always a useful explanation for the actions of

courts,” and, at this point, there is no way to tell whether the

events of 1968 affected the outcome in Jones. Heriot & Somin

at 38, n. 30. Nonetheless, CEO observes that Jones was argued

on April 1-2, 1968—just five weeks after the publication of the

Report of the National Advisory Commission on Civil Disorders

(known as the “Kerner Commission Report”). That report

attempted to explain the extensive civil unrest that took place

over the summer of 1967.

4

Two days after Jones was argued, on April 4, 1968, the

Reverend Martin Luther King, Jr. was assassinated. Dozens of

cities were engulfed in riots, and, in Washington, D.C., twelve

people were killed (mostly in burning homes), more than 1000

injured, and about 1200 buildings were burned. Many of those

burned buildings were in middle-class black neighborhoods

that didn’t begin to recover economically until the 1990s.

Federal offices were evacuated all over the city, and the riots

came within a few blocks of the White House. It took more than

13,000 federal troops and five days to quell the riots. See Ben

W. Gilbert, et al., Ten Blocks from the White House: Anatomy

of the Washington Riots of 1968 (1968).

On the first full day of violence, President Lyndon

Johnson wrote to the Speaker of the House of Representatives

urgently requesting that the Fair Housing Act bill, which had

been stalled for some time, be given immediate priority. See

Letter from Lyndon Baines Johnson to Speaker John W.

McCormick (Apr. 5, 1968). McCormick delivered, and Johnson

signed the bill into law on April 11, 1968. The Fair Housing Act

prohibited racial discrimination in the sale or leasing of

housing independently of § 1982, so it reduced the legal

13

Jones’s interpretation is at odds with the

statute’s text. The statute states that all citizens

should have “the same right … as is enjoyed by

white citizens” to own and convey property. But

white citizens did not have the right not to be

discriminated against in a sale between private

parties. In 1866, if a property owner had decided to

sell only to Asians or only to African Americans, and

not to a white citizen because of his race, that

property owner would have been wholly within his

rights to do so. 5

consequences of the Court’s interpretation of §1982 in Jones.

5

Jones took the position that the text of § 1982

unambiguously prohibits private discrimination. A few years

later in Runyon v. McCrary, 427 U.S. 160 (1976), the Court

interpreted a very similar provision of the statute, 42 U.S.C. §

1981 consistently with Jones.

But this time several newer

members of the Court had come to understand that the

dissenting Justices in Jones—Harlan and White—had been

correct about the proper statutory interpretation of § 1982. In

Runyon, Justice White was joined by Justice Rehnquist in a

detailed dissenting opinion. Justices Stevens and Powell each

filed concurring opinions in which they stated that their view of

the case was driven by stare decisis and not by an actual belief

that the 39th Congress intended to prohibit private

discrimination. See Runyon at 186 (“If the slate were clean, I

might be inclined to agree … that § 1981 was not intended to

restrict private contractual choices. Much of the review of the

history and purpose of this statute set forth in [Justice White’s

dissent] is quite persuasive.”)(Powell, J., concurring); id., at 189

(“For me, the problem in these cases is whether to follow a line

of authority which I firmly believe to have been incorrectly

decided.”)(Stevens, J., concurring).

A decade later, in Patterson v. McLean Credit Union,

491 U.S. 164 (1989), the Court gave § 1981 a narrow reading to

14

Moreover, if Congress had wanted to

guarantee that recently freed slaves had the legal

capacity to own and convey property, they would

have written the law in exactly the way the 1866 Act

was written. Legal capacity to own and convey

property is limited in all sorts of complicated ways.

For example, children and insane persons cannot

buy and sell at will. But promulgating a federal

statute that defines exactly what legal capacity

former slaves have in excruciating detail would be

impossible (and counterproductive, since states

should be given the leeway to change their age of

majority, their definition of insanity, etc.). Instead,

the best way to draft a statute would be to guarantee

all citizens, including African Americans, the same

rights as white citizens—which is exactly what

Congress did. 6

apply only to contract formation and contract enforcement.

Congress responded by amending § 1981, thus eliminating the

issue of the intent of the 39th Congress. As a result of that

amendment, the 1991 version of § 1981 and the intent of the

192nd Congress are what matter in construing § today. Unlike

the 39th Congress, though, there is no reason to impute any

special insight into the Thirteenth Amendment on the part of

the 102nd Congress; the 102nd came more than a century after

the Amendment.

6

Note that the 1866 Act also covers the legal capacity

to convey generally, to sell, inherit and give as gifts. If the

statute were meant to cover private discrimination in these

areas, that would go further than the Fair Housing Act, Pub. L.

90-284, 82 Stat. 73 (1968). CEO favors integration through the

voluntary choice of individuals to live in neighborhoods where

residents of their own race are rare. Most Americans probably

assume, however, that they can choose not to buy a home in a

15

The re-enactment of the Civil Rights Act of

1866 as part of the Civil Rights Act of 1870 is further

evidence of Jones’ error. Congress thought the

ratification of the Fourteenth Amendment would

bolster their argument for the Act’s constitutionality.

But the Fourteenth Amendment deals only with

state action. It thus would add nothing to the

argument for the constitutionality of an act that

purported to prohibit race discrimination by private

parties. By re-enacting the 1866 Act in 1870,

Congress again made itself clear: Its members were

commanding states to accord equal legal capacities to

African Americans and whites. 7

neighborhood where they might feel racially isolated. If Jones’s

interpretation of the 1866 Act is right, they are wrong.

7

Jones invoked statements by members of Congress in

connection with a different bill that would have extended

military jurisdiction over certain areas of the South where “in

consequence of any State or local law, … custom, or prejudice,

any of the civil rights belonging to white persons (including the

right … to inherit, purchase lease, sell, hold, and convey real

and personal property …) are refused or denied to negroes ….”

See Jones at 423 n. 30. The Court suggested that the terms

“custom” and “prejudice” show that the 39th Congress was

indeed thinking of private discrimination when it passed §

1982. But in context, these words were meant to distinguish

“law” (i.e. statutes) from informal administrative practices—

like a registrar of deeds who routinely declined to record deeds

conveying property to African Americans, despite a lack of legal

authority to do so. At most, it would include private actions

that rise to the level of denying African Americans the legal

capacity to own or convey property, such as a mob that

prevents a deed from being recorded.

16

More evidence was provided when Congress

passed the Civil Rights Act of 1875, 18 Stat. 335

(1875), which prohibited race discrimination in

public accommodations like railroads, hotels and

restaurants. This new law was in keeping with the

common law tradition of requiring common carriers

and innkeepers to take all comers. But if the Jones

interpretation is correct, there would be no need for

such a limited law: Congress had already gone much

further than this in 1866. Had members of Congress

forgotten so quickly? For that matter, in 1964, when

members of the Senate slept on cots in order to

break the filibuster against the Civil Rights Act of

1964, were they simply ignorant of the fact that their

proposed law was largely redundant?

There is much more evidence of Jones’ error—

including that discussed in the dissent by Justice

Harlan.

Alas, this error has almost certainly

infected the modern understanding of what the

Thirteenth Amendment was all about.

A 21st

century observer might look at Jones and think that

if members of the 39th Congress thought prohibiting

private discrimination in the sale of real estate was

within its Section 2 powers, then they would have

thought prohibiting race-motivated violence was

within its powers too. Given that most members of

the 39th Congress were also members of the 38th

Congress, which passed the Thirteenth Amendment

in the first place, their opinion should be accorded

great weight in construing Section 2—or so the

argument would run. But the premise is wrong.

Members of the 39th Congress did not pass a law

prohibiting private discrimination in the sale of real

estate. There is thus no evidence to suggest that

17

they thought such a law would be within Congress’s

Section 2 powers.

Much of the modern effort to urge Congress to

take ever more aggressive Section 2 positions—

including the successful effort to pass Section

249(a)(1) of the HCPA—is built upon a foundation

laid by Jones.

See Heriot & Somin at 35-36

(discussing various novel legislative proposals that

rely on Congress’s Section 2 power). But it is a

foundation of sand.

B. The Thirteenth Amendment Is About

Eradicating Slavery and Involuntary

Servitude, Not About Eradicating the

Badges and Incidents of Slavery. The

Latter May Be Outlawed Only as a Means

to the Eradication of Slavery and

Involuntary Servitude. Insofar as Jones

Holds Otherwise, It Should Be Overruled.

Absent guidance from this Court, the lower

courts will read Jones to require them lower courts

to treat the following as settled law: (1) that

Congress must be accorded considerable discretion

in determining what is a “badge” or “incident” of

slavery; and (2) that Congress has the power to ban

these badges and incidents (and maybe even the

“relic[s]” and “vestiges” of slavery) unconnected to

any ultimate aim of exterminating slavery and

preventing its return. 8 Taken together, these two

8

One particularly troubling aspect of Jones is that it

appears equate the “badges” and “incidents” of slavery with the

“relic[s]” and “vestiges” of slavery. See Jones at 442-43

18

supposed holdings would confer extraordinary power

on Congress.

The first such supposed holding would be trivial

without the second, since designating something a

“badge” or “incident” is meaningless unless something

turns on that status. 9 In this brief, therefore, CEO

(“[W]hen racial discrimination herds men into ghettos and

makes their ability to buy property turn on the color of their

skin, then it too is a relic of slavery”); id., at n. 78 (stating that

Congress has the power “to eradicate the last vestiges and

incidents of a society half slave and half free”). This loose

language has moved Thirteenth Amendment jurisprudence

even further from its text and its original intent.

It is interesting to reflect on what this approach might

mean for the interpretation of the identically or nearlyidentically worded enforcement clauses of the Nineteenth (sex

discrimination in voting), Twenty-Third (D.C. electoral votes),

Twenty-Fourth (poll tax prohibition) and Twenty-Sixth

Amendments (18-year-old voting). The now-repealed TwentyEighth Amendment (Prohibition) also had a somewhat similar

provision.

9

Alternatively, if “badges” and “incidents” were

defined very narrowly to include only those legal incidents that

are unique or nearly unique to slavery, the second supposed

holding would arguably be trivial.

CEO notes that the first supposed holding skates over

an issue: Rather than ask who gets to decide what the badges

and incidents of slavery are, one must first ask who gets to

decide what is slavery. CEO believes that the Court and not

Congress has primary responsibility for defining slavery and

involuntary servitude under the Thirteenth Amendment. Cf.

City of Boerne v. Flores, 521 U.S. 507 (1997)(holding that the

Court has primary responsibility for defining Fourteenth

Amendment equal protection violations). On the other hand,

Congress is indeed entitled to deference in selecting the means

19

concentrates on

holding.

critiquing the second

supposed

This much should be obvious from the text:

Section 1 of the Thirteenth Amendment bans slavery

and involuntary servitude and nothing more.

Similarly, Section 2 is unambiguously dependent for

its substance on Section 1. It empowers Congress to

do what is “necessary and proper” to effectuate

Section 1’s ban on slavery and involuntary servitude

and nothing more.

Amendment

co-author

Senator

Lyman

Trumbull and supporter Representative Chilton

White both said that Congress’s enforcement powers

were analogous to those it already had under the

Necessary and Proper Clause. See Cong. Globe, 38th

Cong., 1st Sess. 553 (1864)(statement of Sen.

Trumbull; id., at 1313; Cong. Globe, 38th Cong., 2d

Sess. 214 (1865)(statement of Rep. White).

CEO sides with the 39th Congress (and

against President Andrew Johnson) on the question

of whether Section 2 confers prophylactic power on

Congress. See supra at 6. But that prophylactic

power must be directed toward the prevention of

some particular ill over which the legislature has

jurisdiction—in this case the re-emergence of slavery

by which that judicially defined slavery is to be eradicated and

prevented from returning. Cf. McCulloch v. Maryland, 17 U.S.

316 (1819)(“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 that constitution, are

constitutional.”).

20

and involuntary servitude—or else it is not

prophylactic power. The power to pass prophylactic

laws does not authorize a statute that is not aimed

at effectuating Section 1’s ban on slavery and

involuntary servitude. There is no independent

power to outlaw the short- or long-term effects of

antebellum slavery. Cf. Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265, 307 (1978)(“Powell,

J.)(observing that redressing the wrongs attributable

to specific instances of discrimination is “far more

focused

than

the

remedying

of

‘societal

discrimination,’ an amorphous concept of injury that

may be ageless in its reach into the past.”). The

Thirteenth Amendment did not prohibit slavery

retroactively; it did so prospectively. If Congress is

going to address the effects of the now-distant past,

it must be in the context of a good faith effort to

prevent the return of these dreaded institutions (or

it must be authorized by some other provision of the

Constitution).

Jones’s undue emphasis on the terms “badges”

and “incidents” is perhaps unfortunate. But Jones

was not the first Supreme Court case to use those

terms in discussing Congress’s power under Section

2. That distinction goes to The Civil Rights Cases,.

In those cases, the Court was called upon to decide

whether the Civil Rights Act of 1875, 18 Stat. 335

(1875), which banned race discrimination in public

accommodations, was a valid exercise of Congress’s

authority under Section 2. The Court stated that

Congress had the power to ban the “badges and

incidents” of slavery, but ultimately held that racial

discrimination in public accommodations was not

such a badge or incident, thus beginning a long

21

tradition of narrowly construing those concepts,

which was ended by Jones.

Note, however, that the Court in The Civil

Rights Cases did not state that Congress had the

power to eradicate the badges and incidents of

slavery independently of its power to eradicate

slavery and involuntary servitude.

The reason the Court in The Civil Rights

Cases might have wanted to bring up the concepts of

“badges” and “incidents” seems clear enough.

Chattel slavery was an institution that reduced

human being to the status of property. Just as law

students learn on the first day of classes that

property ownership is “a bundle of sticks,” The Civil

Rights Cases conceptualized chattel slavery as a

bundle of individual sticks—the badges and

incidents of slavery. The best way to ban slavery

directly was to ban a sufficient number of the

individual sticks to make slavery impossible to

maintain. See Heriot & Somin at 35.

Arguably only one of those sticks—the

master’s right to compel the slave to work—is

central to our concept of slavery. Others—like the

slave’s inability to marry or to own property—may

be found in non-slavery contexts too. But later case

law, including Jones, correctly suggests that such

incidents can nevertheless be outlawed by Congress

as part of its efforts to ban slavery and keep it from

re-emerging. See, e.g., Bailey v. Alabama, 219 U.S.

219 (1911). Those cases do not, however, grant

Congress freedom to range widely in ways

22

unconnected to the preventing the re-emergence of

slavery.

Rather than emphasize the rhetoric of “badges

and incidents,” modern Thirteenth Amendment

jurisprudence would do well to emphasize Congress’s

power of prophylaxis. The real point is that Congress

has prophylactic power, whether it uses that power

to prohibit a badge, incident, vestige, relic or none of

the above. Suppose, for example, a pharmaceutical

company invents a drug that causes people to insist

upon being slaves. The drug is not slavery itself;

neither is it a badge, incident, vestige or relic of

slavery. Yet CEO has little doubt that Section 2

gives Congress the authority to ban it in the exercise

of its power to effectuate Section 1’s ban on slavery,

even though the pill is not itself slavery.

More to the point, Jones never specifically

stated that Section 2 gives Congress the authority to

ban anything it designates as a badge or incident of

slavery regardless of whether it is doing so for the

purpose of eliminating slavery and preventing its

return. If it had so stated, its words would have

been dictum, since there is no doubt that § 1982

(whatever its appropriate interpretation) was passed

by the 39th Congress for the purpose of eliminating

slavery and preventing its return. In 1866, the blood

that had recently been spilled for exactly that

purpose was barely dry, and the Black Codes being

promulgated by the states of the former Confederacy

were threatening to make the sacrifice of those who

died unavailing.

23

But if Jones had claimed that Section 2

authorizes Congress to promulgate laws that are not

aimed at eradicating slavery and if this had not been

dictum, then Jones would be at odds with the

Constitution and should be overruled for that

reason.

This is the right case to distinguish or

overrule Jones. Congress did not even purport to be

acting out of a concern to eliminate slavery or

prevent its return. Instead, its findings in the HCPA

state that “eliminating racially motivated violence is

an important means of eliminating, to the extent

possible, the badges, incidents, and relics of slavery

and involuntary servitude” and “in order to

eliminate, to the extent possible, the badges,

incidents, and relics of slavery, it is necessary to

prohibit assaults on the basis of real or perceived

religions or national origins.” See Matthew Shepard

and James Byrd Jr. Hate Crimes Prevention Act,

P.L. No. 111-84, 123 Stat. 2190 (2009), div. E, §

4702, §§ 7, 8, codified at 18 U.S.C. § 249. That is

simply not the same as attempting to end slavery

and keep it away. 10

10

As for the possibility that Congress might re-promulgate §

249(a)(1) of the HCPA pursuant to its Commerce Clause

powers, whether such an exercise of those powers would be

constitutionally valid is not within the scope of the question

presented. CEO believes that it would not be constitutional to

apply the Commerce Clause power to the events at issue in this

case which have neither a connection to interstate commerce

nor an impact on it.

24

CONCLUSION

Judge Elrod’s request for guidance in

reconciling Shelby County, City of Boerne, and Jones

should be heeded. CEO urges the Court to grant the

Petition.

John J. Park, Jr

Strickland Brockington

Lewis LLP

1170 Peachtree Street NE

Suite 2200

Atlanta, GA 30309

678-347-2208

jjp@sbllaw.net

Attorney for Amicus Curiae

Center for Equal