The scope of Congress's Thirteenth Amendment enforcement power after City of Boerne v. Flores.

• Author: McAward, Jennifer Mason

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND: CONGRESSIONAL POWER TO ENFORCE THE RECONSTRUCTION AMENDMENTS A. The Reconstruction Amendments' Enforcement Powers B. Thirteenth Amendment Legislation C. The Supreme Court's Approach to Congress's Enforcement Powers D. A New View of Congress's Enforcement Powers: City of Boerne v. Flores. II. SECTION 2 OF THE THIRTEENTH AMENDMENT: HISTORY AND STRUCTURE A. Original Meaning of the Scope of Section 2 1. Thirteenth Amendment Ratification Debates in Congress and the States 2. Debates over the Civil Rights Act of 1866 3. Debates Regarding the Fourteenth Amendment B. Judicial Approaches to the Section 2 Power C. Defining the Badges and Incidents of Slavery III. THREE POSSIBLE APPROACHES TO CONGRESS'S SECTION TWO POWER A. The Most Restrictive Approach B. The Broadest Approach C. The Middle Approach: Taking Prophylactic Legislation Seriously CONCLUSION INTRODUCTION

As the Supreme Court has tightened its review of legislation passed pursuant to Congress's Fourteenth Amendment enforcement powers, many commentators have turned to the Thirteenth Amendment as a panacea--a source of congressional power for enhanced civil rights protections. Hailed as a "means for enforcing [the nation's] foundational principles of liberty and general wellbeing," (1) and yet lamented as "missing" from constitutional dialogue, (2) the Thirteenth Amendment declares that "[n]either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction." (3) section 2 of the Amendment gives Congress the power "to enforce this article by appropriate legislation." (4)

Congress has relied on its Section 2 power in passing a number of statutes, from the Civil Rights Act of 1866 (5) and the Anti-Peonage Act of 1867, (6) to the Fair Housing Act of 1968, (7) the Victims of Trafficking and Violence Prevention Act of 2000, (8) and, most recently, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. (9) Some of these statutes seek to enforce the literal terms of Section 1 of the Amendment by protecting individuals from involuntary servitude. (10) Others are civil rights bills that prohibit discrimination on the basis of race, color, national origin, and, in some instances, religion. (11)

Few have questioned whether Section 2 in fact empowers Congress to pass such civil rights laws. On the contrary, Congress and academics have assumed, with justification, that the Section 2 power is expansive. In 1968, in Jones v. Alfred H. Mayer Co., the Supreme Court rejected a Thirteenth Amendment challenge to the portion of the Civil Rights Act of 1866 that prohibits racial discrimination in property conveyances. (12) In Jones, the Court stated that Section 2 gives Congress "the power ... rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." (13) Jones thus carved out a broad range of discretion for Congress in enforcing the Thirteenth Amendment and set forth a very deferential standard of judicial review with respect to enforcement measures.

Jones was the third in a trio of Warren Court decisions in which the Court took a consistently broad view of Congress's power to enforce the Reconstruction Amendments. The Fourteenth and Fifteenth Amendments contain enforcement clauses very similar to that of the Thirteenth: each gives Congress the "power to enforce" its substantive provisions by "appropriate legislation." (14) In South Carolina v. Katzenbach (15) and Katzenbach v. Morgan, (16) the Court considered the scope of Congress's Fifteenth and Fourteenth Amendment enforcement powers, respectively. In each case, the Court held that Congress's power was akin to that conferred by the Necessary and Proper Clause, and that McCulloch v. Maryland provided the basic test for measuring the propriety of congressional enactments. (17) Thus, "all means which are appropriate, which are plainly adapted to [a 'legitimate'] end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (18) Jones similarly invoked McCulloch, giving Congress wide-ranging discretion, not only to determine what means are appropriate to enforce the Thirteenth Amendment, but arguably also to define for itself the substantive ends of the Amendment, i.e., the badges and incidents of slavery.

In recent years, however, the Court has altered its approach to enforcement legislation and shown itself far less willing to defer to Congress. In City of Boerne v. Flores, (19) the Court articulated new limits on the scope of Congress's power under Section 5 of the Fourteenth Amendment. Any statute purporting to be an exercise of that power must be "congruen[t] and proportiona[l]" to judicially identified violations of the rights articulated in Section 1 of the Fourteenth Amendment. (20) Using this new standard, the Court has held that Congress exceeded its Section 5 power in passing several civil rights laws. (21) Recently, at least one member of the Court has suggested that the City of Boerne standard should apply in the Fifteenth Amendment voting rights context as well. (22) City of Boerne thus offers a substantially more restrictive standard for evaluating congressional action than Jones, despite the similar text of Sections 5 and 2.

In light of City of Boerne, Jones is arguably a remnant of the past. However, the Court itself has never explicitly questioned the Jones standard, and lower courts continue to invoke that standard to evaluate Thirteenth Amendment legislation. (23) Recent academic literature has suggested that Section 2 of the Thirteenth Amendment would empower Congress to pass legislation regarding everything from hate speech, to racial profiling, to abortion rights and gay rights. (24) Some have noted the tension between Jones and City of Boerne, (25) but few have taken seriously the possibility that Jones's viability might be in question. (26) To date, nobody has undertaken a comprehensive review of the Jones standard on its own merits, much less with an eye toward how the Court's approach in City of Boerne might affect its view of Congress's efforts under Section 2. This Article attempts to fill that gap by examining the proper scope of Congress's Section 2 enforcement power from the perspectives of constitutional text, history, and structure, and by considering how the structural concerns that motivated the Court in City of Boerne might play out in the Section 2 context.

Part I of this Article begins by providing some background on Congress's power to enforce the Reconstruction Amendments. Parts I.A and I.B note the language of the Thirteenth, Fourteenth, and Fifteenth Amendments' enforcement clauses and describe some statutes passed pursuant to Congress's power to enforce the Thirteenth Amendment. Parts I.C and I.D then trace how the federal judiciary has analyzed Reconstruction Amendment enforcement legislation, contrasting the Warren Court's approach with that of the modern Court in City of Boerne.

Part II focuses on Section 2 of the Thirteenth Amendment and attempts to flesh out the background information necessary to assess the proper scope of Congress's power under that Section. Part II.A explores the original meaning of Section 2 with reference to three legislative debates. The debates surrounding the ratification of the Thirteenth Amendment, the passage of the Civil Rights Act of 1866 (the first statute passed by Congress pursuant to its Section 2 power), and the ratification of the Fourteenth Amendment (which was proposed, in part, to resolve doubts about the constitutionality of the Civil Rights Act of 1866) provide a multiplicity of perspectives on both the substantive coverage of Section 1 of the Amendment and the scope of Congress's Section 2 enforcement power. Part II.B examines the federal courts' historic approach to Congress's Section 2 power. Part II.C explores the "badges and incidents of slavery," a central concept in defining the outer limits of the Section 2 power.

Part III offers three different approaches to Congress's Thirteenth Amendment enforcement power and evaluates each from the perspectives of text, history, and constitutional structure. Part III.A evaluates the most restrictive view: that Section 2 limits Congress solely to enacting statutes directed at preventing or punishing efforts to hold a person in slavery or involuntary servitude. In other words, the Section 2 enforcement power is limited to the literal terms of Section 1. This view is arguably supported by a strict reading of the Amendment's text, as well as some framers' views of the scope of the Section 2 power. Moreover, this view sets clear lines for separation-of-powers purposes: it respects judicial supremacy and sets boundaries for Congress's enforcement efforts. If this view of Section 2 prevails, Jones was wrongly decided, and virtually all civil-rights-related Thirteenth Amendment legislation would fall, as statutes forbidding discrimination on the basis of race or anything else go well beyond the realm of slavery and involuntary servitude.

Part III.B considers the most expansive view of Congress's Section 2 power, namely, that offered by Jones and accepted by most modern Thirteenth Amendment scholars: that Congress can enforce Section 1 by first defining the badges and incidents of slavery, and then legislating to address them. Under this view, the federal courts will review Congress's findings as to both substance and remedy solely for rationality. This approach imbues Congress with wide-ranging discretion to decide, not only the permissible means by which to effectuate the Amendment's promise, but also the substantive ends to which the Amendment is addressed. Section 2, viewed in this light, arguably would empower Congress to pass wide-ranging civil rights laws that protect classes and target conduct far removed from the historical...