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 Revolution. And sometimes it is both things at once, spawning an entire sub-genre of newspaper humor devoted to “weird state statutes.” Thus, our attention might momentarily be drawn to, say, Louisiana, where a ban purportedly attaches to gargling in public. Or Michigan, where lawyer’s legend has it that a husband enjoys enforceable rights to the hair on his wife’s head. Or Vermont, where they say the code books make it verboten for anyone to whistle while underwater.
We laugh at ourselves when we read about stuff like this. How typically American, we think — such a quenchless passion for oddball rule-making; so much charming local variety in the result.
And then there is Hawaii.
It is formally a state like any other, of course, and Hawaii, too, has weird statutes. But it turns out Hawaii’s is a weirdness beyond compare, and not at all typically American — not yet, anyway — in two significant respects. 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 second, these particular laws are not the slightest bit charming. They are altogether disgusting. Almost unbelievable.
For example. 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 personal information at issue here is the “percentage of Hawaiian blood” coursing through these citizens’ veins. And the veins of each applicant’s “present spouse.” And the veins of his children. And the veins of his makuahine and makua kane, or “biological” mother and father. 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 multi-generational birth certificates and “other documentation, back to your full Hawaiian ancestor(s).”
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.”
Just for starters, cardholders are entitled to state-negotiated “group discounts on selected retail and service purchases” around the state. And that is the least of the blessings granted to sufficiently “Hawaiian” Hawaiians. 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. 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.
That last part bears emphasis. 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.” Hawaiian not because he is a citizen of Hawaii; Hawaiian by blood.
We know what you’re wondering at this point: Can they actually do all this? Can American shopkeepers — by prompting of the state, no less — sell the same goods at different prices according to their customers’ ethnicity? Can a state law reserve public employment — in offices exercising wide-ranging executive responsibility — to citizens of a particular race? Can it authorize such employees to disburse general public funds exclusively for their own race’s benefit? And can it ever — in any statewide election, anywhere, any time — explicitly withhold the franchise from people with the wrong “blood quantum”? You would not think so. 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.
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. 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. 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.
Hawaii will not have an easy time of it. 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. 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. 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.
The rhetorical sleight of hand here is perfectly transparent; 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 Hispanics or any other race per se, but to the “members” of an “Indian tribe.” 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. 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.
This argument, too, is preposterous. At an earlier stage of the Rice litigation, Hawaii meekly conceded that “the tribal concept simply has no place in the context of Hawaiian history.” Congress has never recognized ethnic Hawaiians as an Indian Tribe. If it ever did so recognize them, Congress’s relevant constitutional authority would not be automatically transferred to the state legislature of Hawaii. Nor could Congress ever deliberately transfer to Hawaii the power to conduct an ethnic-only statewide election, in any case. No such power exists under the Constitution. Forget the Fourteenth Amendment. 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.”
Oh, Hawaii here responds, that’s not what we’re doing at all. 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.” At which point the state’s defense begins to circle back on itself — and collapses in a ridiculous hash of mutilated fact and law.
We can confidently predict that the current Supreme Court will conclude Rice v. Cayetano by invalidating Hawaii’s racist voting law. That is the good news.
And here is the bad. 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.
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. So the future of race-conscious law will depend to a large extent on who gets elected in the year 2000.
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. We need look no further than the behavior of the president we’ve had these past seven years. We need look no further, in fact, than the Clinton administration’s behavior in Rice v. Cayetano itself. Joining Hawaii in defense of a racist voting law next Wednesday will be the “United States,” represented, as always, by the Justice Department.
The Justice Department’s position next week is a disappointment but not a surprise. 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. This is not right. The Constitution is not just some “weird statute.” Our next president, who will sweepingly influence the courts through his judicial appointment power, should know the difference.
David Tell, for the Editors
