The Thirteenth Amendment, Human Trafficking, and Hate Crimes

The two most recent federal statutes passed pursuant to Congress’s Thirteenth Amendment enforcement power are the Trafficking Victims Protection Act of 2000 (TVPA) and the Shepard-Byrd Hate Crimes Act of 2009. While the Thirteenth Amendment basis of the TVPA has never been questioned in court, the constitutionality of the Shepard-Byrd Act has been challenged (albeit unsuccessfully) in a series of recent cases. This Essay will consider this disparity and suggest that it tells us something about the parameters of the Thirteenth Amendment enforcement power. In particular, it suggests that congressional power is at its apex when the conduct regulated—like human trafficking—has a close nexus to actual conditions of slavery or involuntary servitude.

When the conduct regulated is a step removed from the Amendment’s textual prohibitions, as racial hate crimes are, that conceptual space permits greater debate about the validity of Congress’s action.