Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act

Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009? 

 

President Barack Obama greets Louvon Harris, left, Betty Byrd Boatner, right, both sisters of James Byrd, Jr., and Judy Shepard, center, mother of Matthew Shepard, following his remarks at a reception commemorating the enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in the East Room of the White House, Oct. 28, 2009. (Official White House Photo by Pete Souza)

The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act.  In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:

 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute.   But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?

On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers.  They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly,  because the statute does not make a racial classification.

This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.

RR