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Wednesday, July 22, 2020

Shifting Rationales for Anti-Lynching Legislation

A federal anti-lynching bill is pending in Congress. A federal anti-lynching bill has been pending in Congress for over 100 years. What I find interesting in looking those proposals is how their constitutional rationale changes.

The first federal bill, which was introduced in the 1910s, said that private individuals who engaged in lynching violated the equal protection of the laws. Thus, the bill was grounded on Section Five of the Fourteenth Amendment. This was so notwithstanding the Supreme Court's state action cases (such as the Civil Rights Cases). The bill passed the House but died in the Senate.

In the 1930s, another major legislative effort was made. Again the bill rested on Section 5 (this time referring to equal protection and due process), but this time Congress focused on state and local officials who failed to stop a lynching. They were state officials, but the "inaction" theory of state action is one that the Supreme Court subsequently rejected in cases such as DeShaney. The bill passed the House but died in the Senate.

Fast forward to the current bill. As far as I can tell, the constitutional basis for the legislation is the Thirteenth Amendment. The preamble talks about lynching as a direct legacy of slavery and criminalizes private action, though the bill also refers to civil rights. It is hard to see how the bill could be authorized on any other ground. The Fourteenth Amendment state action cases are still there (many of them are incorrectly decided, but there we are), and lynching probably does not fall within the Commerce Clause authority as defined by cases such as Lopez and Morrison.

If this bill is enacted and ever used in a protection, then it will be interesting to see how a constitutional challenge will play out. I can't imagine that the Supreme Court would strike down such a law, but a Thirteenth Amendment explanation would open some new doors.

Posted by Gerard Magliocca on July 22, 2020 at 09:28 AM | Permalink


The "badges and incidents" wording used from the Civil Rights Cases through Jones v. Alfred H. Mayer & Co. is very broad, but I am not sure it is so broad that the current anti-lynching bill, which goes as far to include even minor acts of violence like a backyard BBQ scuffle as a lynching if there is any evidence of racial bias in the motivation for the crime, can stand as a "badge" or "incident". More precise drafting, namely to bring the definition of "lynching" into line with what most people think of when they hear that word, may help here.

Otherwise, it seems like it would run into the same problem as the private civil cause of action for sexual assault in the 1994 VAWA did in US v. Morrison. A Commerce Clause case, yes, but Chief Justice Roberts, like Chief Justice Rehnquist before him, doesn't like opening the doors of the federal judiciary to broad claims.

Posted by: RComing | Jul 22, 2020 7:55:51 PM

I say toss in the kitchen sink here, partially as a placeholder for changes in the law. It might take a while. But, the long game is the thing here.

The 13A appears to be a basic hook for federal hate crime laws. A 1980s opinion noted that Arabs (and I guess Muslims) and Jews were originally seen as a "class" or "race" covered here too. And, this also comes up when hate laws cover GLBTQ individuals.

These laws also tend to (1) including education, database and state assistance components (2) some "and also" aspect when the crime has a federal hook. So, e.g., many of these crimes will somehow have a Commerce Clause component. Let's say if emails are used or something obtained in the mail. But, yes, a "badges of slavery" component often kicks in.

As to DeShaney, some of the lynching cases would involve state officials directly involved in the lynching as a co-conspirator to a greater extent than some child welfare worker being negligent. But, again, it pays to include all aspects in the legislation, leaving it open to the future.


Posted by: Joe | Jul 22, 2020 11:27:38 AM

Important one. But, not pending. Already approved ( by 410-4). One may read here in " Jurist" and links therein:


It is correct, that findings of Congress, suggest clearly, that this legislation, stems mainly from issues of hate towards blacks, yet, not really connected to the 13th amendment. The main rational here, is to render conspiracy, as complete offense. I quote from the bill (relevant part):

" Whoever conspires with another person to violate section 245, 247, or 249 of this title or section 901 of the Civil Rights Act of 1968 (42 U.S.C. 3631) shall be punished in the same manner as a completed violation of such section.... "


Posted by: El roam | Jul 22, 2020 11:01:19 AM

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