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Jewish World Review March 2, 2000 / 25 Adar I, 5760

George Will

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Island of Equal Protection -- THE 15TH AMENDMENT, which was ratified in 1870 for the protection of freed slaves and says that the right to vote may not be denied on the basis of race, is a sword not often unsheathed these days. But last week it was sharp enough when wielded by the Supreme Court to cut down a Hawaii law, which the Clinton administration defended, that said Harold F. Rice and others like him could not vote in a certain statewide election.

Under Hawaii's constitution, only "Hawaiians" are eligible to vote for the nine trustees who administer programs restricted for the benefit of "Hawaiians" and "native Hawaiians." Rice, a Caucasian whose ancestors came to Hawaii in 1831, was not eligible, even though, as Justice Anthony Kennedy dryly noted, Rice is "a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term."

The text of the pertinent statute should make any American wince. It defines a "native Hawaiian" as "any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778 . . . provided that the term identically refers to"--herewith begins the definition of a "Hawaiian"--"the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii." The year 1778 is seminal because it was then that James Cook, the British captain, arrived, beginning the opening of the islands to novel and disastrous diseases and, eventually, tourists.

Denied the right to vote for the trustees, Rice went to a federal court, arguing that the denial violated the 14th Amendment's guarantee of equal protection of the laws, and the 15th Amendment. Rice lost in that court, and an appeals court, but the Supreme Court, finding the 15th Amendment sufficient ground for deciding, ruled 7 to 2 for Rice.

Writing for the majority, Kennedy, whose opinion was joined by Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas (Stephen Breyer and David Souter concurred in the judgment, but wrote separately), said the 15th Amendment "is cast in fundamental terms" that grant "protection to all persons, not just members of a particular race." He cited language from an 1876 ruling: "If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be."

Kennedy noted that Hawaii argued that its law contains no racial category, only a classification defined by ancestry. But, Kennedy said, "Ancestry can be a proxy for race." And "the ancestral inquiry mandated by the state implicates the same grave concerns as a classification specifying a particular race by name."

In a dissent, joined in part by Justice Ruth Bader Ginsburg, Justice John Paul Stevens said "there is simply no invidious"--the devil is usually in the adjectives--"discrimination present in this effort to see that indigenous peoples are compensated for past wrongs, and to preserve a distinct and vibrant culture that is as much a part of this nation's heritage as any." Here you have today's liberal jurisprudence, arguing that some discrimination--the kind that is not "invidious"; the kind that benefits a government-favored group--is constitutional, even if it involves a stark violation of remarkably plain constitutional language, particularly if the discrimination serves "diversity" by allowing government to manage the culture.

Although the court's ruling in this case received scant notice in media preoccupied with the presidential nominating contests, the ruling was a timely reminder of the stakes of those contests. The next president is apt to nominate three, even four, justices. They could weaken or even reverse the court's current healthy predisposition to treat the legality of both discrimination and reverse discrimination--that which is intended to benefit a particular racial group--as equally suspect.

It is depressing that two justices--40 percent of a majority--object to interfering with Hawaii's policy of allocating privileges on the basis of some "blood quantum." Furthermore, the fact that the court's seven-member majority agreed only on the violation of the 15th Amendment suggests that there were not five justices prepared to sustain Rice's claim that the 14th Amendment's equal protection guarantee is incompatible with such racialist policies. Finally, Hawaii's racially restricted spending programs, funded partly from general tax revenues, remain in place, and far from being universally recognized as retrograde, liberals aspire to continue staining America with "race-conscious" measures called "compensation" for this or that grievance group.

All of which illustrates why the most important domestic issue in the current presidential campaign is: Which party should shape the Supreme Court?

Comment on JWR contributor George Will's column by clicking here.


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