US v Metcalf | Center for Equal Opportunity

IDENTITY AND INTEREST OF AMICUS CURIAE The Center for Equal Opportunity (“CEO”) is a research and educational organization formed pursuant to Section 501(c)(3) of the Internal Revenue Code and devoted to issues of race and ethnicity.1 Its fundamental vision is straightforward: America has always been a multiethnic and multiracial nation, and it is becoming even more so. This makes it imperative that our national policies not divide our people according to skin color and national origin. Rather, these policies should emphasize and nurture the principles that unify us. E pluribus unum . . . out of many, one. These principles are embodied in the Reconstruction Era Amendments to the U.S. Constitution. CEO believes that those amendments should be enforced vigorously and consistently with their original purpose, which requires that their meaning not be distorted and their protections not be diluted by invoking those amendments in situations in which they were not originally intended to apply.

Pursuant to Fed. R. App. Proc. 29(a), all parties have consented to the filing of this brief. Pursuant to Fed. R. App. Proc. 29(c)(5), Amicus Curiae affirms that no counsel for any party authored this brief in whole or in part, and no counsel for any party or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amicus Curiae or its counsel made a monetary contribution to the brief’s preparation or submission. 2 CEO hopes that the following thoughts on Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)—a key case interpreting Congress’s power under Section 2 of the Thirteenth Amendment—and its scope will be of some assistance to this Court in its deliberations. SUMMARY OF ARGUMENT Almost fifty years ago, a trio of cases accorded an extraordinary level of judicial deference to Congress in defining the limits of its own power under the Reconstruction Amendments—or at least that is how they have been interpreted. Two of them have since undergone serious refinement and clarification. Katzenbach v. Morgan, 384 U.S. 641 (1966)(Fourteenth Amendment) has been substantially modified by City of Boerne v. Flores, 521 U.S. 507 (1997). Similarly, South Carolina v. Katzenbach, 383 U.S. 301 (1966)(Fifteenth Amendment) has been clarified by Shelby County v. Holder, 133 S. Ct. 2612 (2013). The third case in the trio is also arguably the most in need of refinement and clarification—Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). See, e.g., Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89 (1968)(“Confused Muse”)(criticizing Jones); Jennifer Mason McAward, The Scope of Congress’s Thirteenth Amendment Enforcement Power, 88 Wash. U. L. 3 Rev. 77 (2010)(stating that “the time is ripe to reconsider Jones and the proper scope of Congress’s Thirteenth Amendment enforcement power”). Jones (or rather an unnece 4 distinguishable from this case and need not be challenged head on, since it interpreted a Reconstruction Era statute that was actually aimed at eradicating slavery and preventing its return. Indeed, this case is to Jones as Shelby County is to South Carolina v. Katzenbach. Like the Civil Rights Era statute in South Carolina v. Katzenbach, the Reconstruction Era statute construed in Jones was promulgated when the threat it was designed to deal with was at its height. Like the 2006 statute in Shelby County, which was passed long after the Fifteenth Amendment disfranchisement threat had been brought under control, the HPCA in this case was passed long after the Thirteenth Amendment had successfully rid the nation of chattel slavery. Just as South Carolina v. Katzenbach was not overruled by Shelby County, Jones need not be overruled for appellants to prevail in this case. Nevertheless, Jones’ shortcomings are serious enough and have led Thirteenth Amendment jurisprudence sufficiently astray that they should be addressed in some form. Arguably, Jones is at the root of the doctrinal confusion that this Court must address. This brief therefore discusses: (1) why Jones was incorrectly decided as a matter of statutory interpretation and how that error has infected subsequent discussions of Congress’s authority under Section 2 of the Thirteenth Amendment; and 5 (2) how Jones never stated that Congress had the power to eliminate the badges and incidents of slavery for their own sake rather than for the sake of ending slavery. Insofar as it could be interpreted otherwise, it would be pure dictum, since the statute at issue in Jones was indeed aimed at eradicating slavery, and error. To this, CEO adds that the scope of Congress’s power under Section 2 of the Thirteenth Amendment is an issue that is best addressed sooner rather than later. Congress has several bills pending that purport to rely on an overbroad interpretation of its Thirteenth Amendment powers. See Gail Heriot & Alison Somin, Sleeping Giant?: Section Two of the Thirteenth Amendment, Hate Crimes Legislation and Academia’s Favorite New Vehicle for the Expansion of Federal Power (“Heriot & Somin”), 13 Engage 31, 35-36 (October 2012). By addressing this issue now, the federal judiciary could avoid having to decide the constitutionality of these proposals after they have been signed into law.

US v Metcalf Brief Download

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