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

Note — Volume 102, Issue 2

102 Va. L. Rev. 501
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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.

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  Volume 102 / Issue 2  

A Tribute to Antonin Scalia

By Paul G. Mahoney
102 Va. L. Rev. 285

Foreign Sovereigns as Friends of the Court

By Kristen E. Eichensehr
102 Va. L. Rev. 289

Constitutional Commitment to International Law Compliance?

By David H. Moore
102 Va. L. Rev. 367

Insider Trading in Commodities Markets

By Andrew Verstein
102 Va. L. Rev. 447