My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues:
[W]hen one of the authors of this essay told a friend that she was going to an all-day academic conference on contemporary applications of the Thirteenth Amendment, he expressed shock that there could be any need to discuss this subject and inquired if he had missed a campaign proposal by Newt Gingrich to revive chattel slavery.
He was joking—obviously. Hardly anyone is foolish enough to believe that chattel slavery is in danger of making an imminent or not-so-imminent comeback in America…. Nevertheless, there has been a growing movement in both academia and the halls of Congress to use the Thirteenth Amendment’s Section 2 to address a variety of social ills thought to be in some way traceable back to slavery. This movement has had its greatest recent success with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). In passing that law, Congress relied solely on its Section 2 constitutional authority for its ban on crimes motivated by race and color….
The HCPA is not the only effort to make use of Section 2 in light of the breadth of the Jones decision. Scholarly articles argue that Section 2 authorizes hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; federal child labor bans; bans on racial profiling; minimum-wage laws like the Fair Labor Standards Act; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in