The Uncertain Future of the Matthew Shepard Hate Crimes Prevention Act

I do not think it is likely that the federal government will end up charging George Zimmerman with a crime. But if it does, the prosecution may raise several interesting and potentially certworthy constitutional issues. Jonathan has already noted the possibility of revisiting the dual sovereignty exception to the Double Jeopardy Clause. But another important issue is the constitutionality of the Matthew Shepard Hate Crimes Prevention Act, one of the most likely sources of federal charges.

The Act criminalizes “willfully caus[ing] bodily injury to any person … because of the actual or perceived race, color, religion, or national origin of any person,” with no state-action requirement and no other hook triggering federal legislative authority. So far, the few courts to consider the Act’s constitutionality have uniformly upheld it (and here is an opinion from then-DAAG Marty Lederman in favor of its constitutionality). But I am rather skeptical that the Supreme Court would do the same if it took the case.

Under United States v. Morrison, which the Court shows no sign of revisiting, the Shepard Act is unlikely to be justifiable under the Commerce Clause or the Fourteenth Amendment. Morrison rejected “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce,” as well as the argument that violence by private persons could be prohibited under the Fourteenth Amendment enforcement power.

Instead, the Shepard Act has been defended under the Thirteenth Amendment’s power to pass “appropriate legislation” to “enforce” the abolition of “slavery [and] involuntary servitude.” In the late 1960s, the Court interpreted this power to extend to private race discrimination in housing, in turn relying on historical references to a power to abolish the “badges and incidents of slavery.” In 1971, another case upheld the power to reach a private conspiracy.

But it is hard to read more modern cases, like Shelby County, without thinking that the Court now has a much more restrained view of the power to enforce the Reconstruction Amendments than it did 40-50 years ago. Shelby County demonstrates a strong willingness to normalize the Reconstruction Amendments by construing their powers in line with the Necessary and Proper Clause and even interpreting them in light of the prior-enacted Tenth Amendment. In contrast, the Tenth Circuit’s recent decision upholding the Shepard Act concluded that “The Thirteenth Amendment, enacted after the Tenth Amendment” overrides any implicit limitations of the Tenth. I don’t see the Court using similar reasoning.

Perhaps stare decisis would lead the Court to uphold the Shepard Act under the Thirteenth Amendment, but I strongly suspect that it would find grounds to distinguish its prior cases from a general prohibition of all race-motivated assault. A Court is much more likely to be motivated to distinguish prior cases if it is convinced they are not rightly decided as a matter of first principles. (Here, by the way, is a prior post from Ilya on the Thirteenth Amendment power.)