Professor Jennifer Mason McAward's Work Cited in Recent US Court of Appeals Case

Author: Denise Wager

Mason McAward

In an important recent decision, U.S. v. Cannon (2014 WL 1633160), the United States Court of Appeals for the Fifth Circuit relied heavily upon the work of Notre Dame Law School Professor Jennifer Mason McAward in interpreting the scope of Congress’s power to enforce the Thirteenth Amendment to the Constitution.  Section Two of the Thirteenth Amendment empowers Congress to enforce the prohibition on slavery and involuntary servitude by addressing the “badges and incidents of slavery.”  The court used Professor Mason McAward’s article, Defining the Badges and Incidents of Slavery (published in the University of Pennsylvania Journal of Constitutional Law), to understand the scope of that constitutional provision. 

Mason McAward’s article examines the original meaning of the terms “badge of slavery” and “incident of slavery” as well as how the concepts have been applied in previous Thirteenth Amendment cases.  She considers several analytical variables from historical, jurisprudential, and policy perspectives, including which groups of people Congress can protect, what actors Congress can regulate, and what types of conduct Congress can target under its Thirteenth Amendment enforcement power.

In U.S. v. Cannon, a jury convicted the defendants of committing a race-based hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  The defendants appealed, arguing in part that the Shepard–Byrd Act was unconstitutional. The Court of Appeals affirmed the conviction, using Mason McAward’s research as a basis for assessing the constitutionality of the Shepard-Byrd Act.

McAward is an associate professor of law at Notre Dame Law School and teaches in the areas of civil rights, constitutional law, and habeas corpus. She is a former clerk for retired United States Supreme Court Justice Sandra Day O’Connor.

Originally published by Denise Wager at on July 09, 2014.