Note

When Thirteen is (Still) Greater Than Fourteen: The Continued Expansive Scope of Congressional Authority Under the Thirteenth Amendment in a Post-City of Boerne v. Flores World

This Note argues that any disconnect between the Supreme Court’s jurisprudence regarding Congress’s broad power to enforce the Thirteenth Amendment and its much narrower power to enforce the Fourteenth Amendment does not compel a reduction in the former. Several scholars have observed such tension, and they claim that it requires curbing Congress’s Thirteenth Amendment authority. This Note contends that even if that viewpoint is correct, focusing solely on the disjunction misses fundamental factors that preserve the Thirteenth Amendment as a vibrant font of congressional authority.

This Note grounds its argument in several sources. First, it discusses Congress’s broad authority, under any regime, to legislate against direct violations of the Thirteenth Amendment, and how this authority has gone unutilized. Next, it argues that unlike the Free Exercise Clause context that spawned the famed “congruence and proportionality” test for Congress’s Fourteenth Amendment power, which saw Congress and the Court literally clashing over that provision’s meaning, no such adversarial clash exists over the Thirteenth Amendment. Third, it demonstrates how the Thirteenth Amendment, due to the lack of a state-action requirement, presents fewer federalism problems than its counterpart.

Finally, this Note uses a case study to make the argument come to life. Examining the federal civil remedy for victims of gender-based violence that the Court struck down in United States v. Morrison, in part because it exceeded Congress’s Fourteenth Amendment authority, this Note argues how Congress, even under a congruence and proportionality test, could adopt that same legislation under the Thirteenth Amendment.

Benefits of Error in Criminal Justice

Enroll in law school and you will be taught, within the first year, a revered maxim of criminal law: “[B]etter that ten guilty persons escape, than that one innocent suffer.” This particular articulation belongs to English jurist William Blackstone, but the general notion that the criminal justice system should prefer false acquittals to false convictions predates Blackstone. Nevertheless, the maxim is generally referred to as the Blackstone principle. The ratio itself is unimportant. No one contends that we ought to ensure exactly ten guilty defendants are acquitted for every innocent defendant that is convicted. Rather, the slogan is recited to convey a more general principle: When imposing criminal punishment, we ought to tip the scales to favor false negatives (acquittals of the guilty) for the sake of minimizing false positives (convictions of the innocent), despite a likely decrease in overall accuracy.

The Note contains three Parts that proceed as follows. Part I traces the historical origins of the Blackstone principle, lays out the traditional justifications, and introduces Epps’s dynamic critique. Part II challenges the assumptions on which Epps’s analysis relies and raises significant doubts that the Blackstone principle creates negative systemic effects for defendants. Part III then introduces an affirmative rationale by arguing that the Blackstone principle benefits innocent defendants because it promotes equality

Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

Some scholars argue that, because the post-Baker political question doctrine only implicates separation of powers at the federal level, the doctrine should be subsumed into standing doctrine, as the latter is similarly grounded in separation-of-powers concerns. This Note illustrates that we should not be too quick to relegate the political question doctrine to the doctrinal dustbin. As the history of the doctrine shows, a concern with federal courts’ involvement in the affairs of state governments in-formed the Court’s application of the doctrine before Justice Brennan transformed it in Baker. And as the examples of post-Baker cases like Larsen illustrate, there are areas of state governance where federal courts could use a doctrinal hook to avoid entangling themselves in state governmental procedures.

Justice Frankfurter argued in his Baker dissent that any list of factors for deciding justiciability should include federalism. As he put it, the “reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate,” along with factors similar to those in Justice Brennan’s list, had “been decisive of the settled line of cases” dealing with Guarantee Clause challenges to state governmental action. As this Note has shown, Justice Frankfurter’s view not only carries historical weight, but his own list of relevant factors in political question cases could better handle cases like Larsen. Justice Brennan stated in Baker, “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Ironically, his excision of federalism from the political question doctrine could promote the disorder he feared in cases like Larsen or DeJulio. Reincorporating federalism into the political question doctrine would therefore not only adhere to historical practice, but would also promote the “maintenance of governmental order” between the federal government and the states.

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