Hawaii's Nuremberg Laws
EDITORIAL Hawaii's Nuremberg Laws America is an enormous country speckled with all manner of random foolishness. It is also a nation of laws, earnestly accumulated and amended since before the...
...Therefore, Hawaii pretends to reason, any state-level legislature must be granted similar latitude to make laws concerning every conceivable "indigenous population" within its jurisdiction...
...At an earlier stage of the Rice litigation, Hawaii meekly conceded that "[t]he tribal concept simply has no place in the context of Hawaiian history...
...This is not right...
...Hawaii has never previously claimed to be pursuing such an interest on behalf of the ethnic group in question, and it will not be permitted suddenly to invent that justification, ex post facto, next Wednesday...
...The Fifteenth Amendment is absolute: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race...
...The Democratic party has long viewed the Constitution's colorblind ideal not as a command but merely as a bunch of words on paper to be talked around and thus evaded for momentary political convenience...
...So the future of race-conscious law will depend to a large extent on who gets elected in the year 2000...
...And sometimes it is both things at once, spawning an entire sub-genre of newspaper humor devoted to "weird state statutes...
...If it ever did so recognize them, Congress's relevant constitutional authority would not be automatically transferred to the state legislature of Hawaii...
...generational birth certificates and "other documentation, back to your full Hawaiian ancestor(s...
...Thus, our attention might momentarily be drawn to, say, Louisiana, where a ban purportedly attaches to gargling in public...
...Hawaiian not because he is a citizen of Hawaii...
...Just for starters, cardholders are entitled to state--nego-tiated "group discounts on selected retail and service purchases" around the state...
...Can a state law reserve public employment—in offices exercising wide-ranging executive responsibility—to citizens of a particular race...
...That last part bears emphasis...
...Hawaii will not have an easy time of it...
...They are altogether disgusting...
...ians as an Indian Tribe...
...The constitutionality of that rigid ballot restriction is scheduled for oral argument before the Supreme Court next Wednesday in a case called Rice v. Cayetano...
...Can American shopkeepers—by prompting of the state, no less—sell the same goods at different prices according to their customers' ethnicity...
...Hawaii's legislature years ago candidly acknowledged that "'peoples' does mean 'races.'" But the subterfuge is necessary to sustain the state's basic fallback position: the novel suggestion that ethnic Hawaiians are legally analogous not to blacks or whites or Asians or His-panics or any other race per se, but to the "members" of an "Indian tribe...
...First, Hawaii's most outlandish laws are neither semi-apocryphal nor obscure, but are instead real and central to that state's daily life and politics...
...And the veins of his children...
...Joining Hawaii in defense of a racist voting law next Wednesday will be the "United States," represented, as always, by the Justice Department...
...Oh, Hawaii here responds, that's not what we're doing at all...
...Specific textual provisions of the Constitution give Congress unusual plenary power—subject only to the loosest Fourteenth Amendment review by the courts— to legislate with respect to such tribes...
...We need look no further, in fact, than the Clinton administration's behavior in Rice v. Cayetano itself...
...The rhetorical sleight of hand here is perfectly transparent...
...Instead, the state will be forced to contend that it has made no racial classification in the first place, that when it grants sole voting rights in OHA elections to "aboriginal peoples," it is doing only that: favoring "peoples," not races...
...Forget the Fourteenth Amendment...
...This is not right...
...Since 1978, the Office of Hawaiian Affairs (OHA), the agency that issues this race passport, has distributed hundreds of millions of dollars—drawn from general tax revenues and profits from land held in general public trust—exclusively to genetically determined ethnic "Hawaiians," defined in law as "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands . . . in 1778," the year the first white man arrived...
...For example...
...You would think that such a nakedly racialist, Nuremberg-style legal regime—ethnic identity cards, for heaven's sake— runs flatly afoul of the United States Constitution...
...At long last exposed to national view, the state of Hawaii will nevertheless, without apparent embarrassment, attempt to persuade the justices that its breathtakingly ugly law should be upheld...
...And the veins of his makuahine and makua kane, or "biological" mother and father...
...Almost unbelievable...
...This argument, too, is preposterous...
...If the new president is a Democrat, he will appoint judges who share his party's views on race and law, and we already know what those views are...
...By undisputed Supreme Court precedent, the Fourteenth Amendment's equal protection clause permits state governments to classify their citizens by race only when the classification serves a compelling interest in the remediation of discrimination...
...We know what you're wondering at this point: Can they actually do all this...
...Or Michigan, where lawyer's legend has it that a husband enjoys enforceable rights to the hair on his wife's head...
...At which point the state's defense begins to circle back on itself—and collapses in a ridiculous hash of mutilated fact and law...
...Congress has never recognized ethnic HawaiThe Democratic party has long viewed the Constitution's colorblind ideal as mere words on paper to be evaded for political convenience...
...And then there is Hawaii...
...No such power exists under the Constitution...
...But it turns out Hawaii's is a weirdness beyond compare, and not at all typically American—not yet, any-way—in two significant respects...
...We need look no further than the behavior of the president we've had these past seven years...
...And here is the bad...
...David Tell, for the Editors...
...Once in receipt of this form, the state, if it is satisfied that you have substantiated at least a minimal Hawaiian "blood quantum," will mail you an individually numbered "identification document" according you the status of "registered Hawaiian...
...We laugh at ourselves when we read about stuff like this...
...The personal information at issue here is the "percentage of Hawaiian blood" coursing through these citizens' veins...
...Our next president, who will sweep-ingly influence the courts through his judicial appointment power, should know the difference...
...You would not think so...
...And the veins of each applicant's "present spouse...
...so much charming local variety in the result...
...So you would be surprised to learn that it has taken a full 21 years for even a single aspect of Hawaii's "Hawaiian" laws—their racial voter-eligibility requirement—to approach dispositive resolution in the federal courts...
...And that is the least of the blessings granted to sufficiently "Hawaiian" Hawaiians...
...We can confidently predict that the current Supreme Court will conclude Rice v. Cayetano by invalidating Hawaii's racist voting law...
...Or Vermont, where they say the code books make it verboten for anyone to whistle while underwater...
...Hawaii's statute books make crystal clear that "no person shall be eligible to register as a voter" in statewide elections for the OHA board "unless the person . . . is Hawaiian...
...The Constitution is not just some "weird statute...
...The prognosis remains murky like this for the simple reason that the Court's incumbent majority cannot live forever and may well be replaced in the next presidential administration...
...We cannot confidently predict how the Supreme Court might later decide the constitutionality of Hawaii's other racist "Hawaiian" laws—its ethnic registry, for example—none of which is yet under challenge in any federal court...
...And can it ever—in any statewide election, anywhere, any time—explicitly withhold the franchise from people with the wrong "blood quantum...
...That is the good news...
...How typically American, we think—such a quenchless passion for oddball rulemaking...
...In Hawaii, an agency of the state government asks American citizens to submit pili la 'oa iho—that is, "personal information"—on an official "ancestry enrollment form...
...The Justice Department's position next week is a disappointment but not a surprise...
...Moreover, not incidentally, Hawaii's state constitution grants the favored race exclusive control of OHA's nine-member board, all of whom "shall be Hawaiian" and "shall be . .. elected" in regularly scheduled ballots open only to other Hawaiians...
...Can it authorize such employees to disburse general public funds exclusively for their own race's benefit...
...In order to "prove 50 percent or more Hawaiian blood," the purity level Hawaii prefers, the state announces that you "must" include with this form copies of multiHawaii's official "ancestry enrollment form" asks citizens the "percentage of Hawaiian blood" coursing through their veins...
...We deny 85 percent of our otherwise registered voters access to the OHA election ballot not "on account of race," but simply on account of the fact that they are not "aboriginal peoples...
...Hawaiian by blood...
...It is formally a state like any other, of course, and Hawaii, too, has weird statutes...
...It is also a nation of laws, earnestly accumulated and amended since before the Revolution...
...And second, these particular laws are not the slightest bit charming...
...Nor could Congress ever deliberately transfer to Hawaii the power to conduct an ethnic-only statewide election, in any case...
Vol. 5 • October 1999 • No. 3
