                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 July 3, 2013
                                            PUBLISH
                                                    Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS    Clerk of Court

                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
 v.                                                   No. 12-2040
 WILLIAM HATCH,

                Defendant-Appellant.

 ----------------------------------------

 THIRTEENTH AMENDMENT
 SCHOLARS,

                Amicus Curiae.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                    (D.C. NO. 1:10-CR-03104-BB-2)


Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Appellant.

Thomas E. Chandler, Attorney, Civil Rights Division (Thomas E. Perez, Assistant
Attorney General, and Jessica Dunsay Silver, Attorney, Civil Rights Division,
with him on the brief) Department of Justice, Appellate Section, Washington,
District of Columbia, for Appellee.

George Bach, Counsel of Record, and Dawinder S. Sidhu, University of New
Mexico School of Law, William M. Carter, Jr., Pittsburgh, Pennsylvania,
Alexander Tsesis, Chicago, Illinois, and Rebecca E. Zietlow, Toledo, Ohio on the
brief for Amicus Curiae.


Before MURPHY, O’BRIEN, and TYMKOVICH, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Three New Mexico men kidnaped a disabled Navajo man and branded a

swastika into his arm. The United States charged the assailants with committing a

hate crime under the recently enacted Matthew Shepard and James Byrd, Jr. Hate

Crimes Prevention Act, Pub. L. No. 111-84, Div. E, 123 Stat. 2835 (2009),

codified in relevant part at 18 U.S.C. § 249. As relevant here, the Hate Crimes

Act makes it a felony to physically attack a person because of that person’s race.

      The three assailants contended in district court that the Hate Crimes Act is

unconstitutional, claiming Congress lacks the authority to criminalize purely

intrastate conduct of this character. The government countered that the

Thirteenth Amendment, which abolished slavery in the United States, gave

Congress the necessary authority. The district court agreed with the government,

holding that Congress’s power to enforce the Thirteenth Amendment authorized it

to enact 18 U.S.C. § 249(a)(1), the portion of the Hate Crimes Act under which

the three men were charged.

      One of those men, William Hatch, then pleaded guilty while reserving his

right to appeal. He now renews his challenge to the constitutionality of the Act.


                                        -2-
Like the district court, we conclude that Congress has power under the Thirteenth

Amendment to enact § 249(a)(1). Although the Thirteenth Amendment by its

terms applies to slavery and involuntary servitude, Supreme Court precedent

confirms Congress’s authority to legislate against slavery’s “badges and

incidents” as well. In particular, the Supreme Court held in Jones v. Alfred H.

Mayer Co., 392 U.S. 409 (1968)—a case permitting a federal private right of

action against private individuals for housing discrimination—that Congress itself

has power to determine those badges and incidents.

      Section 249(a)(1) rests on the notion that a violent attack on an individual

because of his or her race is a badge or incident of slavery. Congress reached this

conclusion by accounting for the meaning of “race” when the Thirteenth

Amendment was adopted, the state of mind of the attacker, and the attack itself.

By so doing, and under the authority of Jones, we conclude Congress rationally

determined that racially motivated violence is a badge or incident of slavery

against which it may legislate through its power to enforce the Thirteenth

Amendment.

      We therefore affirm.

                                I. Background

      Hatch and two of his friends, Paul Beebe and Jesse Sanford, worked

together at a restaurant in Farmington, New Mexico. All three are white.



                                        -3-
      In April 2010, a mentally disabled Navajo man—whom the record

identifies only as “V.K.”—came to the restaurant. Beebe convinced V.K. to come

to Beebe’s apartment. Hatch and Sanford later joined Beebe there.

      At Beebe’s apartment, the three white men drew on V.K.’s back with

markers. They told him they would draw “feathers” and “native pride” but

actually drew satanic and anti-homosexual images. They then shaved a swastika-

shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and

used it to brand a swastika into V.K.’s arm.

      Based on these actions, the State of New Mexico charged Beebe, Sanford,

and Hatch under state law with kidnaping, aggravated battery, and conspiracy to

commit both of these crimes.

      Six months later—while the state prosecution was still pending—the

federal government charged Beebe, Sanford, and Hatch with violating (and

conspiracy to violate) 18 U.S.C. § 249(a)(1), a portion of the Hate Crimes Act

making it unlawful to subject a person to physical violence on account of the

person’s race.

      In May 2011, Hatch was convicted in New Mexico state court of conspiracy

to commit aggravated battery, but otherwise acquitted. That same month, Beebe,

Sanford, and Hatch filed a motion in federal court to dismiss the federal

indictment, claiming that 18 U.S.C. § 249(a)(1) is unconstitutional. The district

court rejected that argument in a thorough opinion. United States v. Beebe, 807

                                         -4-
F. Supp. 2d 1045 (D.N.M. 2011). Hatch then entered a conditional guilty plea on

the federal conspiracy charge, preserving his right to appeal the constitutional

question.

      In September 2011, the State of New Mexico sentenced Hatch to

eighteen months’ imprisonment. In February 2012, the district court sentenced

Hatch to the lesser of fourteen months’ imprisonment or time served, running

concurrently with his state sentence.

                                   II. Analysis

       The sole question before us is whether the portion of the Hate Crimes Act

under which Hatch was convicted, 18 U.S.C. § 249(a)(1), is a constitutional

exercise of Congress’s power to enforce the Thirteenth Amendment. We review

challenges to the constitutionality of a statute de novo. United States v. Carel,

668 F.3d 1211, 1216 (10th Cir. 2011), cert. denied, 132 S. Ct. 2122 (2012).

      A. The Thirteenth Amendment Enforcement Power

      Although this case centers on the Thirteenth Amendment, some of Hatch’s

arguments rely on cases arising under the other two Reconstruction Amendments

—the Fourteenth and Fifteenth Amendments. We therefore begin with a brief

description of all three Reconstruction Amendments, and then turn to our analysis

of the Thirteenth Amendment and the Hate Crimes Act specifically.




                                         -5-
            1. The Reconstruction Amendments

      The Thirteenth Amendment prohibits slavery and involuntary servitude,

while extending power to Congress to enforce its provisions:

            Section 1. Neither slavery nor involuntary servitude,
            except as a punishment for crime whereof the party shall
            have been duly convicted, shall exist within the United
            States, or any place subject to their jurisdiction.

            Section 2. Congress shall have power to enforce this
            article by appropriate legislation.

      Congress approved the Thirteenth Amendment in January 1865 as the Civil

War drew to a close. With the Confederacy’s surrender and President Lincoln’s

assassination the following April, twenty-seven states ratified the amendment by

December 1865 and it came into force that same month.

      Two other amendments soon followed, forming a trilogy referred to as the

Reconstruction Amendments. The Fourteenth Amendment resulted in part from

lingering doubts that the Thirteenth Amendment authorized civil rights legislation

enacted under its auspices. See Jennifer Mason McAward, The Scope of

Congress’s Thirteenth Amendment Enforcement Power After City of Boerne v.

Flores, 88 Wash. U. L. Rev. 77, 115–16 (2010) (“McAward, Enforcement

Power”). Congress accordingly proposed the Fourteenth Amendment, which the

states adopted in 1868. As is well known, the Fourteenth Amendment protects

persons against various state-sponsored intrusions and discriminations. It also

contains an enforcement clause similar to Section 2 of the Thirteenth Amendment:

                                        -6-
“The Congress shall have power to enforce, by appropriate legislation, the

provisions of this article.” U.S. Const. amend. XIV, § 5.

      The states adopted the third of the Reconstruction Amendments, the

Fifteenth Amendment, in 1870. In addition to guaranteeing the right to vote

regardless of “race, color, or previous condition of servitude,” U.S. Const. amend.

XV, § 1, the Fifteenth Amendment contains an enforcement provision similar to

those found in the Thirteenth and Fourteenth Amendments: “The Congress shall

have power to enforce this article by appropriate legislation,” id. § 2.

             2. The “Badges and Incidents” of Slavery

      At issue here is the first of the Reconstruction Amendments, the Thirteenth.

On its face, it appears simply to abolish slavery and give Congress power to

enforce that abolition. The Supreme Court soon clarified, however, that

Congress’s enforcement power under Section 2 also extends to eradicating

slavery’s lingering effects, or at least some of them.

      In 1875, Congress acted under both the Thirteenth and Fourteenth

Amendments to pass what was knows as the Civil Rights Act. That act aimed to

guarantee “[t]hat all persons within the jurisdiction of the United States shall be

entitled to the full and equal enjoyment of” public facilities such as inns, theaters,

and rail cars, “subject only to . . . conditions and limitations . . . applicable alike

to citizens of every race and color.” 18 Stat. 336. Any person refusing to abide




                                           -7-
by this guarantee, including private citizens, could be guilty of a misdemeanor.

Id.

      In 1883, five cases arising under this act came to the Supreme Court in an

appeal consolidated as the Civil Rights Cases. All five involved private citizens

or entities denying African Americans access to public accommodations on equal

terms with other races. Civil Rights Cases, 109 U.S. 3, 4 (1883).

      “Has Congress constitutional power to make such a law?” the Supreme

Court inquired. Id. at 10. The Court could find no such power under the

Fourteenth Amendment, given that it restricts state action rather than private

action. Id. at 10–19. The Court then turned to the Thirteenth Amendment. That

Amendment as an original matter had a broader focus, and was “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.” Id. at 20. Beyond simply “nullifying all state laws which

establish or uphold slavery,” the Court reasoned that the Thirteenth Amendment

             has a reflex character also, establishing and decreeing
             universal civil and political freedom throughout the
             United States; and it is assumed that the power vested in
             Congress to enforce the article by appropriate
             legislation, clothes Congress with power to pass all laws
             necessary and proper for abolishing all badges and
             incidents of slavery in the United States . . . .

Id. (emphasis added).




                                          -8-
      But “[c]an the act of a mere individual, the owner of the inn, the public

conveyance, or place of amusement, refusing the accommodation, be justly

regarded as imposing any badge of slavery or servitude upon the applicant . . . ?”

Id. at 24. The Court answered no:

             There were thousands of free colored people in this
             country before the abolition of slavery, enjoying all the
             essential rights of life, liberty, and property the same as
             white citizens; yet no one, at that time, thought that it
             was any invasion of their personal status as freemen
             because they were not admitted to all the privileges
             enjoyed by white citizens, or because they were
             subjected to discriminations in the enjoyment of
             accommodations in inns, public conveyances, and places
             of amusement. Mere discriminations on account of race
             or color were not regarded as badges of slavery.

Id. at 25 (emphasis in original). With this reasoning, the Court struck down the

Civil Rights Act as unconstitutional.

      Historically speaking, it bears noting that the contemporaneous meaning of

“incidents of slavery,” both before and soon after the adoption of the Thirteenth

Amendment, generally referred to the legal restrictions placed on slaves, as well

as slaveowners’ legal rights toward their slaves. See George Rutherglen, The

Badges and Incidents of Slavery and the Power of Congress to Enforce the

Thirteenth Amendment, in The Promises of Liberty: The History and

Contemporary Relevance of the Thirteenth Amendment 163, 164–65 (Alexander

Tsesis ed., 2010) (“Rutherglen, Badges and Incidents”); Jennifer Mason

McAward, Defining the Badges and Incidents of Slavery, 14 U. Pa. J. Const. L.

                                         -9-
561, 570–75 (2012) (“McAward, Defining the Badges”). As is well known, slaves

could not own property, could not enter into contracts, and so forth. Slaveowners,

by contrast, had complete control over their slaves and even their slaves’ children.

These aspects of slavery, as well as the so-called Black Codes that attempted to

perpetuate the master/slave relationship as much as possible after emancipation,

are what were then considered to be “incidents of slavery.” See id.

      “Badges of slavery,” by contrast, had a somewhat looser meaning. See id.

at 575–82. In the antebellum years, it could refer literally to a badge worn by

slaves, such as copper badges issued to certain slaves in Charleston, South

Carolina. See generally Harlan Greene et al., Slave Badges and the Slave-Hire

System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and

Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was

sometimes used as shorthand for “evidence permitting an inference from external

appearances to legal status”). In addition, “badges of slavery” could refer to the

psychological scars that slavery inflicted upon slaves, McAward, Defining the

Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges

and Incidents, at 166.

      In postbellum legal discourse, “badges of slavery” came to be used

primarily as a synonym for slavery’s continuing “incidents,” as perpetuated by the

Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and

Incidents, at 165. But “badges of slavery” also arguably extended to “widespread

                                        -10-
[private] violence and discrimination, disparate enforcement of racially neutral

laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.

      Whatever “badges of slavery” and “incidents of slavery” meant in isolation,

the compound phrase, “badges and incidents of slavery,” first arose in the Civil

Rights Cases and “quickly became the Supreme Court’s standard gloss upon the

powers of Congress under the Thirteenth Amendment.” Rutherglen, Badges and

Incidents, at 172. In other words, it is not clear the Supreme Court in the Civil

Rights Cases intended “badges and incidents of slavery” as a reference to the

phrase’s component parts as contemporarily understood. It was, rather, “a new

characterization of Congress’s power.” McAward, Defining the Badges, at 583.

      The Civil Rights Cases obviously interpreted this characterization narrowly.

Following this narrow reading of what constitutes the badges and incidents of

slavery, the Supreme Court later held that Congress’s badges-and-incidents

authority did not permit it to criminalize threats of violence used to deter black

persons from obtaining gainful employment. Hodges v. United States, 203 U.S. 1

(1906). Even if “one of the disabilities of slavery, one of the indicia of its

existence, was a lack of power to make or perform [employment] contracts,” id. at

17 (emphasis in original), the Court believed that permitting Congress to

criminalize threats of violence used to deter blacks from obtaining employment

would permit Congress to legislate against nearly every wrong committed by one

person against another, see id. at 18–19. This was so, said the Court, because the

                                         -11-
Thirteenth Amendment extends its protections to all races, not just formerly

enslaved races. Id. at 16–17.

      In other words, the Court in Hodges reasoned that if badges-and-incidents

extends to the type of conduct at issue there and if Congress’s badges-and-

incidents authority applies to all races, then Congress could legislate against

“every act done to an individual which was wrong if done to a free man, and yet

justified in a condition of slavery.” Id. at 19. The Court gave no weight to the

element that distinguished a civil rights offense from an ordinary offense, namely,

that the defendant acted because of the victim’s race. See id. at 18 (quoting

government’s concession that the statute’s constitutionality hung on “the

additional element . . . of an injury [inflicted] solely on account of [the victim’s]

color”); cf. id. at 26, 29–30, 34–37 (Harlan, J., dissenting) (repeatedly pointing

out the requirement that the defendant act “because of” the victim’s race).

      Sixty years after Hodges, however, the Court adopted a more generous

approach to Congress’s Thirteenth Amendment enforcement power, giving

Congress relatively wide latitude both to determine what qualifies as a badge or

incident of slavery and how to legislate against it. In Jones v. Alfred H. Mayer

Co., 392 U.S. 409 (1968), a black prospective home buyer was turned away

because the sellers refused to sell “for the sole reason that [plaintiff] [was] a

Negro.” Id. at 412. The plaintiff sued under 42 U.S.C. § 1982, which declares

that “[a]ll citizens of the United States shall have the same right, in every State

                                          -12-
and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,

sell, hold, and convey real and personal property.” Echoing the Civil Rights

Cases, the seller countered that § 1982 must be unconstitutional to the extent it

applies to purely private conduct, rather than state action.

      The Supreme Court disagreed. It concluded that Congress had enacted

§ 1982 under its “power to enforce [the Thirteenth Amendment] by appropriate

legislation.” Jones, 392 U.S. at 437–40. Given that the Thirteenth Amendment

contains no language limiting its effect to government-caused or -supported

conduct (unlike the Fourteenth Amendment), the Supreme Court held that

Congress could apply § 1982 to private conduct, and that it intended to do so.

Id. at 429–36.

      As to the question of whether Section 2 of the Thirteenth Amendment

authorized legislation such as § 1982, the Court returned to the badges-and-

incidents language derived from the Civil Rights Cases. But far from the

constricted view taken in the Civil Rights Cases (and Hodges), the Court

emphasized a statement from one of the amendment’s sponsors, Senator Trumbull

of Illinois, declaring that “it is for Congress to adopt such appropriate legislation

as it may think proper, so that it be a means to accomplish the end.” Id. at 440

(citing Cong. Globe, 39th Cong., 1st Sess., 322).

      “Surely Senator Trumbull was right,” the Court concluded. “Surely

Congress has the power under the Thirteenth Amendment rationally to determine

                                         -13-
what are the badges and the incidents of slavery, and the authority to translate

that determination into effective legislation.” Id. As to § 1982 specifically, the

Court could not “say that the determination Congress has made is an irrational

one” given that restrictions on property ownership and alienability were

indisputably a badge or incident of slavery. Id. at 440–41. Applying this rational

determination standard, the Court upheld § 1982 as a constitutional expression of

congressional power and overruled Hodges on this point. Id. at 441 n.78.

      In sum, after these cases the Thirteenth Amendment can be seen as treating

most forms of racial discrimination as badges and incidents of slavery, and that

Congress not only has the power to enforce the amendment, but also to a certain

extent to define its meaning. That brings us to the Hate Crimes Act.

      B. The Hate Crimes Act

      Relying in part on the badges-and-incidents authority described in Jones,

Congress enacted the Hate Crimes Act in 2009, adding a new § 249 to Title 18.

Section 249 defines two separate offenses.

      The first offense prohibits physical violence (or threats of it in certain

circumstances) on account of the victim’s race, color, religion, or national origin:

             (1) Offenses involving actual or perceived race,
             color, religion, or national origin.—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


                                        -14-
             person, because of the actual or perceived race, color,
             religion, or national origin of any person—

                 (A) shall be imprisoned not more than 10 years, fined
                 in accordance with this title, or both . . . .

18 U.S.C. § 249(a)(1). We refer to this as the “racial violence provision.” This is

the portion of the Act under which Hatch was charged and convicted.

      Congress explicitly justified the racial violence provision under its

Thirteenth Amendment badges-and-incidents authority:

             For generations, the institutions of slavery and
             involuntary servitude were defined by the race, color,
             and ancestry of those held in bondage. Slavery and
             involuntary servitude were enforced, both prior to and
             after the adoption of the 13th amendment to the
             Constitution of the United States, through widespread
             public and private violence directed at persons because
             of their race, color, or ancestry, or perceived race, color,
             or ancestry. Accordingly, eliminating racially motivated
             violence is an important means of eliminating, to the
             extent possible, the badges, incidents, and relics of
             slavery and involuntary servitude.

Id. note (reprinting Pub. L. No. 111-84, § 4702(7) (2009)).

      The second offense defined in § 249 has a similar character, but protects

more broadly against violence on account of religion, national origin, gender,

sexual orientation, gender identity, or disability. It also requires the government

to prove a connection to interstate commerce or that the offense occurred in a

federal territory:




                                         -15-
             (2) Offenses involving actual or perceived religion,
             national origin, gender, sexual orientation, gender
             identity, or disability.—

             (A) In general.—Whoever, whether or not acting under
             color of law, in any circumstance described in
             subparagraph (B) [regarding interstate commerce] or
             paragraph (3) [regarding federal territories], 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 religion,
             national origin, gender, sexual orientation, gender
             identity, or disability of any person—

                   (i) shall be imprisoned not more than 10 years, fined
                   in accordance with this title, or both . . . .


Id. § 249(a)(2).

      That provision is not before us in this appeal.

      C. Constitutionality of 18 U.S.C. § 249(a)(1)

      The racial violence provision’s constitutionality turns on the scope of

Congress’s authority to prohibit racial violence as a badge or incident of slavery.

In this regard, as we explained above, the Supreme Court’s Jones decision

establishes a “rational determination” test. As the Court there stated, “Surely

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.” 392 U.S. at 440. Thus, under

Jones, if Congress rationally determines that something is a badge or incident of


                                          -16-
slavery, it may broadly legislate against it through Section 2 of the Thirteenth

Amendment.

      Hatch argues, however, that Congress’s badges-and-incidents authority has

grown substantially narrower in the past few decades. Hatch specifically relies on

a synthesis of federalism concepts derived from the Tenth Amendment and

post-Jones Supreme Court decisions regarding Congress’s powers under the

Commerce Clause and Section 5 of the Fourteenth Amendment. Hatch believes

these authorities demonstrate that the racial violence provision is an example of

Congressional overreach—an impermissible intrusion into matters the

Constitution reserves to the states.

      While Hatch’s arguments raise important federalism questions, in light of

Jones it will be up to the Supreme Court to choose whether to extend its more

recent federalism cases to the Thirteenth Amendment. In addition, the racial

violence provision displays limiting principles that are arguably more confining

than Jones itself contemplated. Thus, we need not decide the outer limits of

Jones’s rational determination standard because the racial violence provision can

be seen in a much narrower light.

             1. Federalism Concerns

      Hatch’s federalism arguments begin with the Tenth Amendment: “The

powers not delegated to the United States by the Constitution, nor prohibited by it

to the States, are reserved to the States respectively, or to the people.” According

                                        -17-
to Hatch, the Tenth Amendment dictates that “Thirteenth Amendment legislation

is not ‘appropriate’ if it fails to accommodate the state police power.” Aplt. Br.

at 24.

         The Tenth Amendment certainly highlights the structural significance of

federalism in our constitutional system. But when the Constitution explicitly

grants Congress authority to act, the Tenth Amendment gives way: “If a power is

delegated to Congress in the Constitution, the Tenth Amendment expressly

disclaims any reservation of that power to the States . . . .” New York v. United

States, 505 U.S. 144, 156 (1992). The Thirteenth Amendment, enacted after the

Tenth Amendment, explicitly gives Congress power to enforce its prohibitions.

No party has cited, nor could we find, any authority stating that the Tenth

Amendment nonetheless imposes limits on Congress’s Thirteenth Amendment

powers.

         But because the three Reconstruction Amendments “disclose[] a unity of

purpose,” Slaughter-House Cases, 83 U.S. 36, 67 (1872), Hatch proposes that a

Fourteenth Amendment case—City of Boerne v. Flores, 521 U.S. 507 (1997)—

demonstrates certain limits. City of Boerne evaluated the constitutionality of the

Religious Freedom Restoration Act (RFRA), which was Congress’s attempt to

legislatively overrule Employment Division v. Smith, 494 U.S. 872 (1990). Smith

had abrogated much of the Supreme Court’s earlier jurisprudence regarding

whether a neutral law of general application nonetheless impermissibly burdened

                                         -18-
a person’s First Amendment right to free exercise of religion. The pre-Smith test

required the government to demonstrate compelling need to apply such a law to a

religious objector. Id. at 882–84. Smith eliminated that requirement on the

theory that a neutral law of general application raises no free exercise concerns,

even if it burdens a religious objector’s ability to worship. Id. at 878–80.

      Congress responded to Smith by enacting RFRA, which re-imposed a

stricter standard on the states—in effect, returning to the pre-Smith understanding

of the First and Fourteenth Amendments. Congress justified RFRA as

“appropriate legislation” under Section 5 of the Fourteenth Amendment, which

provides (similar to Section 2 of the Thirteenth Amendment) that “Congress shall

have power to enforce, by appropriate legislation, the provisions of this article.”

The Supreme Court, however, held that Congress had in fact attempted to amend

the Constitution legislatively . City of Boerne, 521 U.S. at 532. The Court

acknowledged that Section 5 of the Fourteenth Amendment gives Congress

important powers, but “[i]f Congress could define its [Section 5] powers by

altering the Fourteenth Amendment’s meaning, no longer would the Constitution

be superior paramount law, unchangeable by ordinary means.” Id. at 529

(internal quotation marks omitted).

       The Court further insisted on “a congruence and proportionality between

the injury to be prevented or remedied and the means adopted to that end.” Id. at

520. The Court found an example of congruence and proportionality in South

                                         -19-
Carolina v. Katzenbach, 383 U.S. 301 (1966), which addressed the

constitutionality of the Voting Rights Act of 1965 under Section 2 of the Fifteenth

Amendment. That section states: “The Congress shall have power to enforce this

article by appropriate legislation.” Although South Carolina v. Katzenbach was a

Fifteenth Amendment case, City of Boerne found it instructive given that the

portions of the Voting Rights Act at issue applied only to specific areas of the

country where race-based voting discrimination had been especially prevalent.

City of Boerne, 521 U.S. at 530–33. 1 Such geographic tailoring—backed by

reliable congressional findings—provided congruence and proportionality to the

injury at stake. Id.

      RFRA, by contrast, applied nationwide and placed “substantial costs” on

the states, “both in practical terms of imposing a heavy litigation burden on the

States and in terms of curtailing their traditional general regulatory power.” Id. at

534. “Laws valid under Smith would fall under RFRA without regard to whether

they had the object of stifling or punishing free exercise.” Id. RFRA therefore

exceeded Congress’s Fourteenth Amendment, Section 5 powers.

      City of Boerne nowhere mentions the Tenth Amendment, the Thirteenth

Amendment, or Jones. It does, however, note the Reconstruction-Era Congress’s


      1
          Cf. Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse,
1968 Sup. Ct. L. Rev. 89, 101, 121–22 (criticizing Jones v. Alfred H. Mayer Co.
for failing to address evidence that Congress may have intended the 1866 Civil
Rights Act to apply only in the South).

                                        -20-
concern with ensuring that the Fourteenth Amendment did not grant general

police power to the national government. Id. at 520–24.

      Similar concerns underlay two Commerce Clause cases on which Hatch

also relies, United States v. Lopez, 514 U.S. 549 (1995), and United States v.

Morrison, 529 U.S. 598 (2000). In Lopez, the Supreme Court addressed

Congress’s power under the Commerce Clause to enact the Gun-Free School

Zones Act. The act “neither regulate[d] a commercial activity nor contain[ed] a

requirement that the possession [of a gun in school zone] be connected in any way

to interstate commerce.” Lopez, 514 U.S. at 551. The Court therefore struck it

down as an impermissible attempt to exercise “general federal police power.” Id.

at 564.

      In Morrison, the Supreme Court struck down a portion of the Violence

Against Women Act (VAWA) for similar reasons. VAWA provided a federal

civil remedy to victims of “violence motivated by gender.” Morrison, 529 U.S. at

605 (internal quotation marks omitted). This remedy, although civil in nature,

“cover[ed] a wide swath of criminal conduct.” Id. at 606. In enacting VAWA,

Congress found that gender-motivated violence affected interstate commerce

indirectly, but the Supreme Court “reject[ed] the argument that Congress may

regulate noneconomic, violent criminal conduct based solely on that conduct’s

aggregate effect on interstate commerce. The Constitution requires a distinction

between what is truly national and what is truly local.” Id. at 617–18. “Indeed,”

                                        -21-
the Court continued, “we can think of no better example of the police power,

which the Founders denied the National Government and reposed in the States,

than the suppression of violent crime and vindication of its victims.” Id. at 618.

The Court accordingly concluded that VAWA’s civil remedy exceeded Congress’s

powers under the Commerce Clause. 2

      Hatch believes that the Jones approach to the Thirteenth Amendment

undermines the principles animating City of Boerne, Lopez, and Morrison—or in

other words, that Jones creates a constitutional loophole through which Congress

can enact all sorts of otherwise impermissible police power legislation. For

example, says Hatch, if all Congress must do is rationally determine that

something is a badge or incident of slavery, then it “would permit the federal

government . . . to combat such ills as racial profiling, racial bias of jurors, and

race discrimination in imposition of the death penalty,” Aplt. Br. at 29, or take

control of education and family life “given the deprivations of education and

familial rights that characterized slavery,” Reply Br. at 3.

      At its core, Hatch’s argument raises important concerns we share. “Badges

and incidents of slavery,” taken at face value, puts emphasis solely on the conduct

Congress seeks to prohibit, and it seems to place few limits on what that conduct


      2
         The Court also held that Section 5 of the Fourteenth Amendment did not
give Congress power to enact VAWA’s civil remedy because Congress sought to
regulate private conduct, not state action, and because Congress had not shown
geographic “congruence and proportionality.” Id. at 625–27.

                                         -22-
might be. Given slaves’ intensely deplorable treatment and 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—and thereby

labeled a badge or incident of slavery under Jones’s rational determination test.

In effect, this interpretation gives Congress the power to define the meaning of

the Constitution—a rare power indeed. See City of Boerne, 521 U.S. at 529. And

many legal scholars have encouraged broad use of Section 2 power in essentially

this way, 3 which would arguably raise the sort of federalism concerns articulated

in City of Boerne, Lopez, and Morrison. Others have argued for a narrower

interpretation that relates more directly to slavery as an institution rather than to

any individual feature of slavery. 4

      3
         See, e.g., Douglas L. Colbert, Liberating the Thirteenth Amendment, 30
Harv. C.R.-C.L. L. Rev. 1, 49 (1995) (“a growing number of legal academics and
law students are acknowledging the Thirteenth Amendment’s usefulness in
addressing many of today’s critical race and human rights issues”); id. at 47–49
(proposing the Thirteenth Amendment as a means to combat racial disparity in
capital sentencing); Pamela D. Bridgewater, Reproductive Freedom as Civil
Freedom: The Thirteenth Amendment’s Role in the Struggle for Reproductive
Rights, 3 J. Gender Race & Just. 401, 409–10 (2000) (arguing that “the history of
reproductive abuse during the American slavery era” brings reproductive rights
generally within the Thirteenth Amendment’s ambit); Akhil Reed Amar & Daniel
Widawsky, Child Abuse As Slavery: A Thirteenth Amendment Response to
DeShaney, 105 Harv. L. Rev. 1359, 1364–65 (1992) (reasoning that an abusive
parent creates master-slave relationship toward the child, obligating the state to
intervene and making it liable for failure to do so).
      4
         See, e.g., McAward, Defining the Badges, at 621–29 (proposing that
“badges and incidents” should be limited to race-motivated public or widespread
private conduct that resembles the institution of slavery and is likely to reimpose
                                                                        (continued...)

                                         -23-
      While this debate raises worthwhile questions, the Supreme Court has never

revisited the rational determination test it established in Jones. And more

importantly for our purposes, none of the federalism authorities Hatch cites

mention Jones or the Thirteenth Amendment. 5 Thus, even if we assume Hatch’s

authorities impliedly undermine Jones’s approach to the Thirteenth Amendment,

we may not blaze a new constitutional trail simply on that basis: “If a precedent

of [the Supreme] Court has direct application in a case”—such as Jones has to

this case—“yet appears to rest on reasons rejected in some other line of decisions,

the Court of Appeals should follow the case which directly controls, leaving to

[the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez

de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also

Thomas More Law Ctr. v. Obama, 651 F.3d 529, 559 (6th Cir. 2011) (Sutton, J.,

concurring) (“[T]he Supreme Court has considerable discretion in resolving

[novel constitutional questions]. [That] does not free lower court judges from the

duty to respect the language and direction of the Court’s precedents . . . .”).

      4
       (...continued)
de facto slavery); see also George Rutherglen, State Action, Private Action, and
the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1403 (2008) (characterizing
“whether the Thirteenth Amendment prohibits practices that do not closely
resemble traditional forms of slavery” as “the right question” when attempting to
discern the scope of Congress’s badges-and-incidents authority) (“Rutherglen,
State Action”).
      5
         See also McAward, Enforcement Power, at 81 (“In light of City of
Boerne, Jones is arguably a remnant of the past. However, the [Supreme] Court
itself has never explicitly questioned the Jones standard . . . .”).

                                         -24-
      Thus, we must leave it to the Supreme Court to bring Thirteenth

Amendment jurisprudence in line with the structural concerns that prompted the

limits announced in City of Boerne, Lopez, and Morrison.

             2. Internal Limitations Within 18 U.S.C. § 249(a)(1)

      Further, even under Jones we see limiting principles to congressional

authority, and the racial violence provision respects those limits.

      Although “badges and incidents of slavery” could be interpreted as giving

Congress authority to legislate regarding nearly every social ill (because nearly

all can be analogized to slavery or servitude), the racial violence provision does

not take such an approach. Rather, the racial violence provision focuses on three

connected considerations: (1) the salient characteristic of the victim, (2) the state

of mind of the person subjecting the victim to some prohibited conduct, and

(3) the prohibited conduct itself. Each consideration receives attention in the

racial violence provision and leads us to conclude that Congress met the Jones

test in rationally determining racially motivated violence to be a badge or incident

of slavery that it could prohibit under its Section 2 authority.

      First, concerning the salient characteristic of the victim—“race, color,

religion, or national origin”—Congress confined the racial violence provision’s

reach to aspects of race as understood in the 1860s when the Thirteenth

Amendment was adopted. As to religion and national origin specifically,

Congress found that “members of certain religious and national origin groups

                                         -25-
were . . . perceived to be distinct ‘races’” in the 1860s and therefore sought to

protect these categories “at least to the extent such religions or national origins

were regarded as races” in the 1860s. 18 U.S.C. § 249 note (reprinting Pub. L.

No. 111-84, § 4702(8)). Supreme Court precedent supports this finding. See

Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (noting that

Congress of the 1860s and ’70s often used “race” to refer to distinctions we

would likely now think of as matters of national origin or religion rather than

race); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (same).

      Congress made no similar findings for “color,” but there is no reasonable

dispute that “color” has long been used as a synonym for “race,” particularly with

respect to African Americans.

      By contrast, Congress placed non-racial classifications—gender, sexual

orientation, gender identity, and disability—in a separate paragraph and explicitly

linked those classifications to the Commerce Clause or Congress’s power over

federal territories. See 18 U.S.C. § 249(a)(2). Congress likewise repeated the

protection for “religion” and “national origin” in that paragraph, presumably to

cover circumstances in which a particular religion or national origin was not

perceived as a distinct race in the 1860s.

      Accordingly, Congress chose to extend the racial violence provision only to

persons who embody a trait that equates to “race” as that term was understood in

the 1860s.

                                         -26-
      The second aspect of badges-and-incidents on display in the racial violence

provision is the state of mind of the person subjecting the victim to some

prohibited conduct. This further confines the statute’s reach. Congress did not

seek to punish all violence against those who embody a trait that equates to

“race.” Rather, Congress seeks to punish only those who act “because of the

[victim’s] actual or perceived race.” 18 U.S.C. § 249(a)(1) (emphasis added).

That is exactly what happened in this case.

      The third aspect of badges-and-incidents—the prohibited conduct itself—

requires little discussion in light of the foregoing. Congress could rationally

conclude that physically attacking a person of a particular race because of animus

toward or a desire to assert superiority over that race is a badge or incident of

slavery. The antebellum North Carolina Supreme Court, for example,

characterized unrestrained master-on-slave violence as one of slavery’s most

necessary features. State v. Mann, 13 N.C. (2 Dev.) 263, 1829 WL 252, at *2–3.

“[U]ncontrolled authority over the body,” it said, is the only thing “which can

operate to produce” a slave’s necessary obedience. Id. at *2. “The power of the

master must be absolute, to render the submission of the slave perfect.” Id.; see

also United States v. Nelson, 277 F.3d 164, 189 (2d Cir. 2002) (“slavery in

general . . . centrally involves the master’s constant power to use private violence

against the slave”); Neal v. Farmer, 9 Ga. 555, 1851 WL 1474, at *8 (stating that

being “liable to beating . . . and every species of chastisement” were “incidents of

                                         -27-
slavery”); George M. Stroud, A Sketch of the Laws Relating to Slavery 31, 38 (2d

ed. 1856) (listing among the “incidents” of slavery, “[t]he master may, at his

discretion, inflict any punishment on the person of his slave”); Rutherglen, State

Action, at 1399 (“the principal feature of the law of slavery was the ‘master’s

justice’ over his slaves, who had virtually no legal protection from the master’s

decision to discipline and punish”). Just as master-on-slave violence was

intended to enforce the social and racial superiority of the attacker and the

relative powerlessness of the victim, Congress could conceive that modern

racially motivated violence communicates to the victim that he or she must

remain in a subservient position, unworthy of the decency afforded to other races.

      In sum, Congress employed a limited approach to badges-and-incidents,

applying that concept to: (a) actions that can rationally be considered to resemble

an incident of slavery when (b) committed upon a victim who embodies a trait

that equates to “race” as that term was understood in the 1860s, and (c) motivated

by animus toward persons with that trait. While Congress’s three-faceted

approach is nowhere clearly spelled out in case law, and we therefore have no

occasion to decide whether legislation enacted under Section 2 of the Thirteenth

Amendment must conform to this approach, we have no trouble endorsing this

approach as a means to rationally determine the badges and incidents of slavery.

While facially broad, the Jones formulation supports the narrower approach

Congress took in the racial violence provision—and we need not speculate on

                                         -28-
whether a broader criminalization of conduct under this rationale would pass

constitutional review.

       We therefore conclude that Section 2 of the Thirteenth Amendment

authorized Congress to enact the racial violence provision of the Hate Crimes

Act.

       D. The Certification Requirement

       Hatch also challenges the Hate Crimes Act’s requirement that the Attorney

General certify any prosecution under the Act:

             (b) Certification requirement—

             (1) In general.—No prosecution of any offense
             described in this subsection [6] may be undertaken by the
             United States, except under the certification in writing
             of the Attorney General, or a designee, that—

                (A) the State does not have jurisdiction;

                (B) the State has requested that the Federal
                Government assume jurisdiction;



       6
           We assume “this subsection” is a drafting mistake and should actually
say “this section,” i.e., § 249. If taken literally, “this subsection” would refer to
itself, i.e., subsection 249(b). But subsection 249(b) does not describe any
offense. The literal reading would therefore render it nonsensical. Cf. United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (“The plain meaning of
legislation should be conclusive, except in the rare cases in which the literal
application of a statute will produce a result demonstrably at odds with the
intentions of its drafters.” (internal quotation marks omitted; alterations
incorporated)); Gilmore v. United States, 699 A.2d 1130, 1132 (D.C. 1997)
(construing a reference to “this subsection” to mean “this section” because the
reference would otherwise be circular and meaningless).

                                          -29-
                (C) the verdict or sentence obtained pursuant to State
                charges left demonstratively unvindicated the Federal
                interest in eradicating bias-motivated violence; or

                (D) a prosecution by the United States is in the
                public interest and necessary to secure substantial
                justice.

Id. § 249(b)(1). In Hatch’s case, the government filed a “Notice of Certification”

showing that an assistant attorney general certified the prosecution under

subparagraph (D).

      Hatch contends the certification requirement represents Congress’s attempt

to insert City of Boerne-like congruence and proportionality into the Act. Hatch

appears to be saying that, rather than the geographic congruence and

proportionality the Supreme Court endorsed in City of Boerne, Congress

attempted to create congruence and proportionality by limiting prosecutors’

discretion to bring hate crimes cases. And this case supposedly proves that such

congruence and proportionality is a sham because the federal government indicted

Hatch without awaiting the result of his state prosecution. In particular, Hatch

argues that the certification prong under which he was indicted—“a prosecution

by the United States is in the public interest and necessary to secure substantial

justice”—imposes no real limits on federal power.

      We see no constitutional significance in the certification requirement.

Similar certification requirements have existed in Thirteenth Amendment




                                        -30-
legislation long before 1997, when the Supreme Court introduced the “congruence

and proportionality” standard through City of Boerne.

      For example, 18 U.S.C. § 245 criminalizes racially motivated violence

intended to dissuade the victim from “participating in or enjoying any benefit,

service, privilege, program, facility or activity provided or administered by any

State or subdivision thereof.” Id. § 245(b)(2)(B). And it prohibits the

government from commencing prosecutions for that offense without Attorney

General certification that “a prosecution by the United States is in the public

interest and necessary to secure substantial justice.” Id. § 245(a)(1). This has

been the law since 1968. See id. (statutory credits).

      Similarly, 18 U.S.C. § 247 criminalizes vandalism or destruction of

“religious real property because of the race, color, or ethnic characteristics of any

individual associated with that religious property.” Id. § 247(c). The government

may not prosecute such an offense “except upon the certification in writing of the

Attorney General or his designee that in his judgment a prosecution by the United

States is in the public interest and necessary to secure substantial justice.” Id.

§ 247(e). Congress enacted § 247(c) in 1996—a year before City of Boerne—and

the certification requirement (§ 247(e)) has been a part of the statute since 1988,

when the statute applied only to offenses affecting interstate or foreign

commerce. See Pub. L. No. 100-346, § 1, 102 Stat. 644 (1988).




                                         -31-
      We have found no suggestion that these certification requirements were

somehow constitutionally required—or constitutionally deficient given that

“public interest” and “substantial justice” are expansive legal concepts. We

therefore see no merit in Hatch’s argument that the Hate Crimes Act’s

certification requirement somehow proves the need for congruence and

proportionality, or the lack of it in this case.

      E. Equal Protection

      Finally, Hatch advances what he characterizes as an equal protection

argument. He contends as follows: (1) Section 2 of the Thirteenth Amendment

authorizes Congress “to extend protection only to members of groups

disadvantaged by the legacy of slavery,” Aplt. Br. at 52 (emphasis added), so

(2) the racial violence provision really protects only certain racial groups, and

therefore (3) we must subject it to strict scrutiny because the racial violence

provision necessarily makes distinctions on the basis of race. This argument fails

for several reasons.

      First, the Supreme Court has already stated that the Thirteenth Amendment

protects all races, not just those that had been subject to slavery in the United

States. As explained in Hodges:

             While the inciting cause of the [Thirteenth] Amendment
             was the emancipation of the colored race, yet it is not an
             attempt to commit that race to the care of the nation. It
             is the denunciation of a condition, and not a declaration
             in favor of a particular people. It reaches every race and

                                           -32-
             every individual, and if in any respect it commits one
             race to the nation, it commits every race and every
             individual thereof. 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.

203 U.S. at 16–17. Jones overruled Hodges to some extent, see Jones, 392 U.S.

at 441 n.78, but not on this point. Eight years after Jones, the Supreme Court

cited this passage from Hodges with approval as demonstrating that the Court had

“previously ratified the view that Congress is authorized under the Enforcement

Clause of the Thirteenth Amendment to legislate in regard to every race and

individual.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18

(1976) (internal quotation marks omitted).

      In any event, Hatch’s argument does not raise an equal protection problem.

Although the idea of equality before the law is deeply ingrained in our

jurisprudence, the legal guarantee of equal protection is not a supraconstitutional

principle by which the Constitution itself is judged. If, as Hatch claims, the

Thirteenth Amendment limits Congress to protecting formerly enslaved races,

then Thirteenth Amendment legislation limited to protecting formerly enslaved

races is constitutional because it is the very sort of legislation the Thirteenth

Amendment authorizes. 7



      7
        Hatch has not challenged the district court’s conclusion that whites
enslaved Navajos well into the 1800s. See Beebe, 807 F. Supp. 2d at 1053–54.

                                          -33-
      Alternatively, one could argue that the later-enacted Fourteenth

Amendment somehow supersedes Congress’s supposed Thirteenth Amendment

power to enact legislation only to protect formerly enslaved races. 8 But if that is

the case, then we have no problem here because the racial violence provision does

not limit its reach to members of formerly enslaved races, but explicitly protects

“any person.” Thus, it does not run afoul of equal protection principles.

                                 III. Conclusion

      The portion of the Hate Crimes Act under which Hatch was charged and

convicted—18 U.S.C. § 249(a)(1)—is a lawful exercise of the powers granted to

Congress by Section 2 of the Thirteenth Amendment. We therefore affirm

Hatch’s conviction.




      8
         The Fourteenth Amendment, enacted in 1868, guarantees equal
protection, and by its terms it restricts only the states—not the federal
government. But the Supreme Court has construed the Fourteenth Amendment to
have inserted an equal protection understanding into the Fifth Amendment’s due
process clause. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
215–18 (1995).

                                         -34-
