Constitution of the United States/Thirteenth Amend./Section 2 Enforcement

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Thirteenth Amendment Abolition of Slavery

Section 2 Enforcement

Clause Text
Congress shall have power to enforce this article by appropriate legislation.

Overview of Enforcement Clause of Thirteenth Amendment[edit | edit source]

Because the Thirteenth Amendment is self-executing, its prohibitions on slavery and involuntary servitude became effective upon ratification without the need for further government action.[1] Nonetheless, Section 2 of the Amendment grants Congress the power to enforce the Amendment's prohibitions by enacting "appropriate legislation."[2] Congress may use its enforcement power to address specific circumstances and provide remedies for violations of the Thirteenth Amendment's prohibitions.[3] Because the Thirteenth Amendment's Prohibitions Clause extends to private conduct as well as government action, the Supreme Court has long held that Congress may enforce the Amendment through legislation that directly regulates private individuals' activities.[4]

After the Civil War, newly freed slaves faced various forms of state-sanctioned and private discrimination. For example, some states enforced Black Codes that denied African Americans equal rights under the law, including the rights to vote, hold property, and use public facilities.[5] Some states codified the practice of peonage, enabling individuals to use the threat of force or legal action to compel African Americans to perform services to satisfy a financial obligation.[6] In addition, some operators of public accommodations, such as hotels and restaurants, sought to prevent African Americans from patronizing their businesses.[7] In response, beginning in 1866, Congress enacted civil rights legislation that sought to ensure that people of all races would have equal rights to make and enforce contracts and hold property, among other fundamental rights.[8] In various cases, individuals challenged the constitutionality of these laws, arguing that Congress's Thirteenth Amendment enforcement power did not authorize it to enact such laws.

For more than a century after the states ratified the Thirteenth Amendment, the Supreme Court determined that Congress's power to legislate against the "badges" and "incidents" of slavery did not authorize it to enact legislation that broadly sought to protect African Americans from private racial discrimination.[9] However, the Court's views on Congress's enforcement power changed significantly with its 1968 decision in Jones v. Alfred H. Mayer Co.[10] In that case, the Court adopted a more deferential approach toward Congress's enforcement power, determining that Congress may play a significant role in determining the scope of its power through the enactment of legislation.[11] Although the Court has since upheld Congress's power to enforce the Thirteenth Amendment by enacting laws to combat some forms of private racial discrimination, Congress's power to combat harms beyond racial discrimination is less clear.[12]

Early Doctrine on Enforcement Clause of Thirteenth Amendment[edit | edit source]

For more than a century after the states ratified the Thirteenth Amendment, the Supreme Court adopted a narrow view of the scope of Congress's power to enforce the Amendment's prohibitions. In an early decision, the Court considered the extent of Congress's enforcement power in cases that addressed equality of access to public accommodations (e.g., hotels and restaurants).[13] In the consolidated 1883 Civil Rights Cases, the federal government indicted several defendants for violating the Civil Rights Act of 1875[14] by denying African Americans equal access to accommodations.[15] The defendants argued that the Court should quash their indictments because Congress lacked the constitutional authority to enact the Act's provisions the government alleged they violated.[16]

The Supreme Court acknowledged that the Thirteenth Amendment authorized Congress to enact laws that directly addressed some forms of private conduct.[17] However, when addressing the government's argument that the Thirteenth Amendment authorized Congress to enact the disputed provisions of the Act, the Supreme Court wrote that Congress's enforcement power extended only to the subject of "slavery and its incidents."[18] The Court defined these "badges and incidents" of slavery to include: (1) compulsory service for another's benefit; (2) restrictions on freedom of movement; (3) the inability to hold property or enter into contracts; and (4) the incapacity to have standing in court or testify against a White person.[19]

In the Civil Rights Cases, the Court held that racial discrimination by private individuals in the context of access to accommodations did not amount to a badge or incident of slavery as prohibited under the Thirteenth Amendment.[20] Consequently, Congress lacked the power to outlaw such practices pursuant to its Thirteenth Amendment enforcement power. Accordingly, the provisions of the Civil Rights Act of 1875 at issue were unconstitutional.[21]

During the early twentieth century, the Supreme Court again adopted a narrow interpretation of Congress's power under the Thirteenth Amendment's Enforcement Clause. The Court considered whether Congress could punish conspiracies that sought to interfere with labor contracts entered into by African Americans.[22] In Hodges v. United States, a group of White men threatened African Americans who worked at a lumber mill, seeking to prevent the workers from performing their jobs.[23] The defendants were convicted under federal laws that criminalized conspiracies to deprive American citizens of their constitutional rights, which included the right to enter into contracts.[24] Appealing their convictions, the defendants argued that Congress lacked the authority to enact legislation criminalizing such conspiracies.[25] The Court, after determining that Congress lacked such power over private contracts under the Constitution's original text, reviewed the Reconstruction Amendments to decide whether they authorized Congress to enact the legislation.[26]

The Supreme Court first determined that neither the Fourteenth nor Fifteenth Amendments authorized Congress to enact the laws at issue because these Amendments restricted state action, not private action.[27] However, because the Thirteenth Amendment applied to private action, the Court considered whether Congress could enact the laws as an exercise of its power to enforce that Amendment.[28] Ultimately, the Court answered this question in the negative, holding that private interference with an individual's freedom to contract did not subject an individual to slavery or involuntary servitude within the Thirteenth Amendment's meaning.[29] The Court held that the federal government lacked jurisdiction over the conduct at issue and set aside the convictions.[30] In so holding, the Court adopted a narrow view of the Thirteenth Amendment's prohibitions on involuntary servitude, determining that, while the Amendment prohibited slavery, it did not protect many other individual rights of African Americans.[31]

Scope of Enforcement Clause of Thirteenth Amendment[edit | edit source]

For more than a century after the states ratified the Thirteenth Amendment, the Supreme Court determined that Congress's power to legislate against the "badges" and "incidents" of slavery did not authorize it to enact legislation that sought to protect African Americans from some forms of private racial discrimination.[32] However, the Court significantly changed course with its 1968 decision in Jones v. Alfred H. Mayer Co.[33] In that case, the Court overruled its earlier decision in Hodges v. United States and adopted a much more deferential approach, determining that Congress may play a significant role in determining the scope of its enforcement power by enacting legislation.[34]

In Jones, the Supreme Court held that Congress had authority to enact a provision in the Civil Rights Act of 1866 that barred private racial discrimination in the sale or rental of property.[35] Overruling its earlier decision in Hodges, the Court held that Congress could prohibit private acts that interfered with African Americans' "fundamental rights which are the essence of civil freedom," including the right to lease or purchase real property, so long as Congress had a rational basis for doing so.[36] The Court wrote 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 determination into effective legislation."[37] Thus, in Jones, the Court adopted a more deferential approach toward Congress's enforcement power, determining that legislation could prohibit practices, such as the discriminatory refusal to engage in real estate transactions with African Americans, that did not amount to slavery but retained the vestiges of some of its "badges" or "incidents."[38]

After deciding Jones, the Supreme Court held that Congress's Thirteenth Amendment enforcement power allowed it to prohibit private racial discrimination in a variety of other contexts.[39] For example, the Court confirmed that Congress's enforcement power authorized it to enact laws barring racial discrimination in making and enforcing contracts, which prohibited racially discriminatory admissions policies for private schools.[40] In addition, the Court held that Congress could enact remedial laws that granted individuals a statutory remedy against private persons that allegedly conspired to violate their civil rights because of their race.[41]

The Court has suggested, however, that the Congress that proposed the Thirteenth Amendment did not intend to prohibit practices that lacked discriminatory intent and merely had a disparate negative impact on African Americans.[42] As a result, it is unclear whether Congress's Thirteenth Amendment enforcement power extends to prohibiting such practices.

Use of Enforcement Clause Power Beyond Harms of Racial Discrimination[edit | edit source]

The scope of Congress's power to enforce the Thirteenth Amendment to combat harms beyond racial discrimination is unclear.[43] Questions about the scope of Congress's Thirteenth Amendment enforcement power arose when the 111th Congress enacted the Hate Crimes Prevention Act of 2009. The Act criminalized conduct that willfully caused, or attempted to cause, bodily injury to individuals because of their actual or perceived race, color, religion, or national origin.[44] The prohibition did not require that such criminal offenses involve state action or have a nexus to interstate commerce, prompting questions as to whether Congress's Thirteenth Amendment enforcement power authorized its criminalization of privately inflicted harms.[45]

Although the Supreme Court has not yet considered the 2009 Act's constitutionality, the Department of Justice's Office of Legal Counsel (OLC) opined that Congress could rely on its Thirteenth Amendment enforcement power to enact the legislation. The OLC advised that the Act was constitutional at least "insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment."[46] The OLC reasoned that Congress could punish private, racially motivated violence "as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery."[47] The OLC noted that race-based violence had been used in the past to maintain slavery and involuntary servitude.[48] In determining that Congress's Thirteenth Amendment enforcement power authorized legislation protecting certain religious and national origin groups, the OLC relied on a series of Supreme Court opinions holding that such groups would have been considered races at the time that Congress debated, and the states ratified, the Thirteenth Amendment.[49]

Uncertainty over whether the Thirteenth Amendment authorizes legislation prohibiting private forms of violence against certain groups illustrates that much remains unclear about the scope of Congress's enforcement power. One major unresolved question involves the extent to which Congress, when enacting legislation to enforce the Thirteenth Amendment, has the power to define the specific forms of government or private action that the Amendment prohibits.[50]

  1. ↑ The Civil Rights Cases, 109 U.S. 3, 20 (1883) ("This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.").
  2. ↑ Thirteenth Amend., Section 2 Enforcement.
  3. ↑ The Civil Rights Cases, 109 U.S. at 20. The Fourteenth and Fifteenth Amendments contain similar enforcement language. For more information on Congress's power to enforce the Fourteenth Amendment, see Fourteenth Amend., Sec. 5: Who Congress May Regulate. For more information on Congress's power to enforce the Fifteenth Amendment, see Fifteenth Amend., Sec. 2: Federal Remedial Legislation.
  4. ↑ Clyatt v. United States, 197 U.S. 207, 217 (1905) (citing The Civil Rights Cases, 109 U.S. at 20, 23).
  5. ↑ See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426-37 (1968); Bell v. Maryland, 378 U.S. 226, 288, 303 (1964) (Goldberg, J., concurring).
  6. ↑ See Peonage Cases, 123 F. 671, 673-74 (M.D. Ala. 1903).
  7. ↑ See, e.g., The Civil Rights Cases, 109 U.S. at 8-10, 23.
  8. ↑ See, e.g., Act of April 9, 1866, 39 Cong. ch. 31, 14 Stat. 27, 27-30. See also 42 U.S.C. §§ 1981-1982.
  9. ↑ See Thirteenth Amend., Sec. 2: Early Doctrine on Enforcement Clause of Thirteenth Amendment.
  10. ↑ 392 U.S. 409 (1968).
  11. ↑ Id. at 440.
  12. ↑ See Thirteenth Amend., Sec. 2: Scope of Enforcement Clause of Thirteenth Amendment.
  13. ↑ The Civil Rights Cases, 109 U.S. 3, 8-11 (1883).
  14. ↑ See Act of March 1, 1875, ch. 114, 18 Stat. 335.
  15. ↑ The Civil Rights Cases, 109 U.S. at 26.
  16. ↑ See id. at 8-9.
  17. ↑ Id. at 20 ("And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.").
  18. ↑ Id. at 23.
  19. ↑ Id. at 22.
  20. ↑ Id. at 24.
  21. ↑ Id. at 26. The Supreme Court also held that Congress lacked the power to legislate the relevant provisions of the Act under the Fourteenth Amendment because that Amendment authorized Congress to enact corrective legislation negating state laws that violated Fourteenth Amendment guarantees and not to legislate new federal laws prohibiting private discrimination. Id. at 11-13. See also Ex parte Virginia, 100 U.S. 339, 344-46 (1879) (determining that the Thirteenth, Fourteenth, and Fifteenth Amendments authorized Congress to enact civil rights legislation prohibiting racial discrimination in jury selection because such discrimination implicated state action).
  22. ↑ Hodges v. United States, 203 U.S. 1, 14-20 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968).
  23. ↑ The Supreme Court's opinion in Hodges does not provide much detail as to the case's background. See Jones, 392 U.S. at 441 n.78 (discussing the facts of Hodges).
  24. ↑ Id.
  25. ↑ See id.
  26. ↑ Hodges.
  27. ↑ Id.
  28. ↑ Id
  29. ↑ Id. at 18-19.
  30. ↑ Id. at 20. See also United States v. Harris, 106 U.S. 629, 642-43 (1883) (declaring that Congress lacked power under the Thirteenth Amendment to enact a law criminalizing conspiracies of two or more persons that sought to deprive another person of equal protection of the laws because upholding the law would "accord to Congress the power to punish every crime by which the right of any person to life, property, or reputation is invaded").
  31. ↑ Id. The Court later determined that judicial enforcement of such covenants violated the Fourteenth Amendment's Equal Protection Clause. Shelley v. Kraemer, 334 U.S. 1, 23 (1948). In a separate case, the Court determined that enforcement of such covenants in the District of Columbia, which is not subject to the Fourteenth Amendment, violated federal law and policy. Hurd v. Hodge, 334 U.S. 24, 32-36 (1948).
  32. ↑ See Thirteenth Amend., Sec. 2: Early Doctrine on Enforcement Clause of Thirteenth Amendment.
  33. ↑ 392 U.S. 409 (1968).
  34. ↑ Id. at 440-42 & 441 n.78. The Supreme Court has confirmed that Congress's power to address private racial discrimination is not limited to discrimination against African Americans, but encompasses all races. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (citing Hodges v. United States, 203 U.S. 1, 16-17 (1906)), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968).
  35. ↑ Jones, 392 U.S. at 417-22, 440-44.
  36. ↑ Id. at 440, 441 & n.78.
  37. ↑ Id. at 440.
  38. ↑ In this case, those vestiges were private acts that interfered with African Americans' rights to hold property or enter into contracts. See id. at 441. The Court did not address whether the Thirteenth Amendment's Prohibition Clause would itself have prohibited the practices at issue in the case without Congress's enactment of legislation. Palmer v. Thompson, 403 U.S. 217, 226-27 (1971) (holding that a city's closing of swimming pools to all persons, even if done with the intent to prevent African Americans and Whites from swimming together, did not amount to a "badge or incident" of slavery directly prohibited under the Thirteenth Amendment). In Palmer, however, the Court noted that Congress had not enacted a federal law barring this practice. Id.
  39. ↑ In the 1960s, the Supreme Court also upheld congressional enactments against private racial discrimination in public accommodations that served interstate travelers as a proper exercise of Congress's Commerce Clause power. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 250-51, 261-62 (1964). The Court rejected the notion that such enactments violated the Thirteenth Amendment as applied to the businesses furnishing public accommodations. See id. See also Katzenbach v. McClung, 379 U.S. 294, 304-05 (1964).
  40. ↑ Runyon v. McCrary, 427 U.S. 160, 179 (1976) (evaluating Section 1 of the Civil Rights Act of 1866, which provided that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to make and enforce contracts . . . as is enjoyed by white citizens"), superseded by 42 U.S.C.§ 1981(c). See also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235-40 (1969) (confirming that 42 U.S.C. § 1982, which Congress enacted pursuant to its Thirteenth Amendment enforcement power, prohibited private individuals from excluding an African American lessee, on the basis of race, from using community recreational facilities).
  41. ↑ Griffin v. Breckenridge, 403 U.S. 88, 105 (1971). Nonetheless, the Supreme Court cautioned that the federal statute at issue in Griffin, 42 U.S.C. § 1985, was not a source of "general federal tort law" and that a successful claim required a showing of "invidiously discriminatory animus behind the conspirators' action." Id. at 102.
  42. ↑ City of Memphis v. Greene, 451 U.S. 100, 126-29 (1981) (holding that a city's closing of one end of a street to reduce the flow of traffic and increase safety, even if it disproportionately inconvenienced African American citizens, was not a "badge" of slavery prohibited under the Thirteenth Amendment). See also Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 387-89 (1982) (determining that the Congress that proposed the Thirteenth Amendment was not concerned with practices that had a disparate negative impact on African Americans but lacked a discriminatory purpose). For a discussion of how the Fourteenth Amendment's guarantee of equal protection applies to facially neutral laws that have a disparate negative impact on a racial minority but lack discriminatory intent, see .
  43. ↑ Some commentators have argued that the Thirteenth Amendment prohibits practices that do not involve racial discrimination but are allegedly comparable to slavery or involuntary servitude. For example, some scholars have argued that the Amendment prohibits parents from abusing their children or prevents the government from banning abortion. See, e.g., Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1365-66 (1992) (contending that the Thirteenth Amendment prohibits certain forms of child abuse); Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U.L. Rev. 480, 484 (1990) ("When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the thirteenth amendment."). The Supreme Court has never applied the Prohibition Clause in Section 1 of the Thirteenth Amendment to child abuse or abortion bans. Moreover, the Court has not addressed whether Congress could use its Section 2 enforcement power to address these issues. See generally George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1403 (2008) ("Congress, unlike the courts, has the capacity to select the elements associated with slavery for prohibition or regulation and to reflect the political support necessary to curtail or eliminate those elements of servitude. By contrast, under Section 1, the judiciary can only go so far in finding that otherwise justifiable relationships, such as that between parent and child, can be regulated when they take on pathological forms equivalent to involuntary servitude.").
  44. ↑ 18 U.S.C. § 249(a)(1).
  45. ↑ See Constitutionality of the Matthew Shepard Hate Crimes Prevention Act, 33 Op. O.L.C. 240 (2009), [1]. Another section of the Hate Crimes Prevention Act prohibits offenses committed because of a person's actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability. See 18 U.S.C. § 249(a)(2). However, this prohibition requires a nexus between the offense and interstate commerce. See id. Thus, Congress's Commerce Clause power arguably provided the requisite authority for the criminal prohibition.
  46. ↑ 33 Op. O.L.C. 240 (2009). The OLC did not evaluate whether Congress's Commerce Clause power or Fourteenth Amendment enforcement power might authorize the law. See id. at 242 n.3.
  47. ↑ Id. at 242.
  48. ↑ Id.
  49. ↑ Id. at 242-43. See also Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987) (suggesting that Jews are a race in this context); Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610-13 (1987) (holding that Arabs were considered a racial group at the time the states ratified the Thirteenth Amendment); Hodges v. United States, 203 U.S. 1, 17 (1906) ("Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African."). The OLC suggested that Congress's authority to protect other groups under the legislation could derive from its Commerce Clause power. See Constitutionality of the Matthew Shepard Hate Crimes Prevention Act, 33 Op. O.L.C. 240 (2009), [2].
  50. ↑ See G. Sidney Buchanan, The Thirteenth Amendment and the Badge of Slavery Concept: A Projection of Congressional Power, 12 Hous. L. Rev. 1070, 1070 (1975); Rutherglen, supra note here, at 1403-04.
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