- FrontPage Magazine - http://www.frontpagemag.com -

Ferguson and the Thirteenth Amendment

Posted By Ian Smith On August 21, 2014 @ 12:30 am In Daily Mailer,FrontPage | 5 Comments

The events in Ferguson, Missouri this past week have triggered calls for President Obama to push for an anti-race profiling-bill to prevent police from “disproportionately targeting ethnic minorities for investigation, interrogation and arrest” – Obama has helped pass such legislation when he was a state senator –Senator Ben Cardin (D-Md.) has urged Congress to introduce legislation that would “once and for all prohibit racial profiling by law enforcement officials.”

In spite of “racial profiling” more naturally being a state matter (insofar that it’s regulatable), such a power grab by the federal government is entirely possible due to the gradual expansion of the Thirteenth Amendment’s ban on slavery. Although relatively dormant during the first 100 years of its passage, the Thirteenth Amendment’s Section 2 enforcement power, which authorizes Congress to enact “appropriate legislation” to end the “badges and incidents of slavery,” has dramatically widened since the 1960s and could “justify” such a bill.

But Senator Cardin and his supporters, like Rep. John Conyers, may have to act quickly. Next term, the Supreme Court will likely take up US v. Cannon, a case which legal commentators say may result in the culling of this disconcertingly imprecise “badges and incidents”standard and pare back further legislative overreach by the federal government.

Ever since the Supreme Court began signaling to Congress that there may be some limits to what they can pass under the Commerce Clause, liberal legal scholars have argued that Section 2 can be used to justify everything from hate speech regulations and minimum-wage laws to bans on payday lending and even the regulation of environmental problems in black communities. The source of this overreach comes from the fact that Congress during the Amendment’s enactment failed to flesh out what exactly they meant by “badges and incidents” of slavery. Still, cases from that era treated the clause as narrowly relating to Section 1’s general ban on slavery; over and over again courts decided that legislation passed under Section 2 had to relate to “incidents” that could specifically lead to the re-establishment of slavery.

This was the approach until the racially charged 1960s when the Supreme Court decided in Jones v. Alfred H. Mayer & Co., a case involving housing discrimination, that the power to ban “badges and incidents” included the power to forbid anything that Congress determines might be “rationally related” to those badges and incidents; a standard that, according to critics, is deferential enough to give Congress the power to legislate on topics with little connection to slavery.

It was under this interpretation of the Thirteenth Amendment that Congress in 2009 passed the Matthew Shepard and James Byrd Hate Crimes Prevention Act (HCPA) which sought to criminalize acts that “cause bodily injury to any person … because of the actual or perceived race, color, religion, or national origin of any person.” In Cannon, three white homeless males were charged under the Act because they used racial slurs after drunkenly assaulting another homeless male who was black – Apart from the nightmarish abuse one envisions from such a vague and flexible standard, this area of criminalization generally falls under the policing powers of individual states. Federalizing this part of the law is not only unnecessary and in violation of states’ rights, say critics, but it also raises double jeopardy concerns in that it allows for the federal government to re-prosecute a defendant already acquitted in state court. As was seen in the Zimmerman trial, this danger is especially serious when hysterical subjects like white-on-black “hate crime” are involved.

Since the passage of the HCPA, courts have expressed concern about its constitutional validity. Judges in Hatch v. US, a Tenth Circuit case involving white-on-Native American violence, acknowledged that, post-Jones, there were “few limits” on what conduct might be prohibited under the Act and that given slavery’s lasting effects, “nearly every hurtful thing one human could do to another and nearly every disadvantaged state of being might be analogized to slavery.” Last year’s landmark decision in Shelby County, a voting rights case involving a nearly identical enforcement power in the Fifteen Amendment, the Supreme Court noted that although Congress has the power to enforce the right to vote, it is not unlimited. Like the police power, the Court noted that states, not the federal government, have historically been given voting law powers and that “exceptional conditions” would have to exist to justify such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”

As civil rights expert Gail Heriot has noted, the approach the Supreme Court took in the late sixties “essentially interprets the Thirteenth Amendment as giving Congress a general police power over all conduct concerning race.” Given the cynical abuse of racial issues by the White House, the Democrats in Congress and groups like the ACLU and SPLC, it’s critical that the power to define what constitutes “incidents of slavery” or “racial profiling” always be closely scrutinized and kept away from potential politicization as much as possible.

Freedom Center pamphlets now available on Kindle: Click here.

Subscribe to Frontpage’s TV show, The Glazov Gang, and LIKE it on Facebook.


Article printed from FrontPage Magazine: http://www.frontpagemag.com

URL to article: http://www.frontpagemag.com/2014/ian-smith/ferguson-and-the-thirteenth-amendment/

Copyright © 2009 FrontPage Magazine. All rights reserved.