How bout you tell us why you are right?
Virginians who can trace their ancestry back to the 1700s are not an oppressed class of people. They are not in danger of having their culture wiped out. Their physical appearance is no different from non-“native” Virginians. They have never received discriminatory treatment because of their status. The OP holds no water.
Crimeny, guys, **MMI **called it in the 2nd post. Why did it take everyone else so long to catch on? :dubious:
Anyway, one difference between Hawaii and Virginia is that the governement might (and I emphasize might) use this method as a form or restitution or reparations towards a group of people (and/or their descendents) from whom the government had wrongfully taken land in the past. It’s unclear to me that this is the government’s position (in fact I’d be surprised if it were), but that is a distinction that can be made.
Otherwise, there is no real difference between the situation in Hawaii and the proposal made in the OP.
I’ll bite - but first let’s make your OP analogy more accurate. Let’s say that China has armed Hawaii with the necessary ingredients that Hawaii can force itself upon Virginia, and that, for whatever reason (perhaps Virginians are seen as too simple to handle their own affairs), no one helps to intercede on their behalf. The Virginia government is stripped of its duties. The choices parts of their lands are grabbed at whatever price the Hawaiians see as fair, through “legitimate” or otherwise transactions. The official language of Virginia becomes Hawaiian, by action if not actual declaration, make void the voting rights of all but a select handful of Virginians.
Now let’s build a several hundred mile moat between Virginia and the United States. The economic system will make it very difficult for Virginians to leave, and anyway, this is the only land they’ve ever known, so they will mostly have hard labor on the plantations or no work at all.
Now, let’s let that stew for about 100 years. In the meantime, some former Virginians will be successful in this new Hawaiian state, but many will struggle economically to survive. An influx of people and investors from other, richer parts of the world will continue to drive housing prices out of the hands of most native Virginians.
Is that about right before we compare apples to apples?
14th Amendment says people in all state will be treated as equal under the law.
This post holds no water.
Sure.
The Fourteenth Amendment has an Equal Protection Clause, which has been held to require strict scrutiny be applied to any government action which involves racial classification.
This program of Hawaii’s involves racial classification.
This program of Hawaii’s should be subject to strict scrutiny.
To survive strict scrutiny review, the government must show both that the policy in question advances a compelling state purpose and that the means chosen to accomplish that purpose are narrowly tailored to that end.
It’s unclear to me precisely what the compelling state purpose here is - to encourage the preservation of purer Hawaiian bloodlines? To ensure Hawaiian families build improvements on leased land, because they can ensure transfer to dependents? Neither of these is a legitimate governmental aim. And even if it were, the method chosen: leasing land for 99 years only to people of 50% or “purer” Hawaiian ancestry is not narrowly tailored for that purpose.
The Fourteenth Amendment also has a Privileges and Immunities clause, which forbids a state from treating other states’ citizens differently merely because they are from another state.
That’s why I’m right.
Bricker: I think you are on to something here. Of course I would say your criteria for true Virginian falls short. Let’s face it all the Euro/African Immigrants are not native Virginians. Let offer it only to the displaced descendants of Native Americans.
Oh wait, you only used your op to illuminate a point about a Hawaiian law that would appear to compensation for taking their land to start with.
Why is this law that almost no one has ever heard of or complained about so bad?
I just don’t see an inherent problem with the fairness of it. I can speak to the legality; just the sense of fair play appears to be positive.
Jim
Redressing gross wrongs seems like a compelling government purpose. I don’t see how it could be any more narrow to meet the purpose.
You’re wrong.
The act in question, the Hawaiian Homes Commission Act, was first enacted 85 years ago by Congress in 1920, almost 40 years before Hawaii was admitted as a State. It was meant to remedy the multitude of problems indigent Hawaiians had, and were having. The Act set aside about 200,000 acres of the ceded public lands and created a program of loans and long-term leases for the benefit of “native Hawaiians”. The land was given in trust to Hawaii for five purposes:
“[1] for the support of the public schools and other public educational institutions, [2] for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, [3] for the development of farm and home ownership on as widespread a basis as possible [,][4] for the making of public improvements, and [5] for the provision of lands for public use.”
The Supreme Court dealt with this statute in 2000 in Rice v. Cayetano, when it considered a law that disallowed non Hawaiians from voting for the Office of Hawaiian Affairs, which oversaw the lands. In Rice, SCOTUS said that discrimination violated the 15th Amendment. More importantly to the issue Bricker raises, the majority in SCOTUS rejected Hawaii’s attempt to analogize indigenous peoples to Indian tribes.
Rice seems pretty good precedent for Brickers argument that the statute violates the Fair Housing Act.
So what?
By that I mean – assuming all that you say is true, the Fourteenth Amendment STILL exists, and it still requires that racial classification schemes pass a standard of strict scrutiny. Are you saying that this lease-land-for-a-dollar scheme is narrowly tailored to achieve a compelling state goal? If so, what is the goal? And how does this scheme advance that goal and only that goal?
Yes, MMI mentioned that he though it had something to do with Hawaii, the first in a long series of clues one could follow to discern what we were supposed be debating.
All right, I’ve vented, I’ll end hijack now, but I’m still annoyed.
Does the Fourteenth amendment prevent the use of racial classifications? It says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Is the state giving land to a specific racial group denying equal protection of the laws?
Yes.
When people are treated differently based on their race, that’s an Equal Protection issue.
The Equal Protection Clause does not FORBID racial classification outright. But if a state scheme uses racial classification, then it’s subject to the most intense scrutiny available, and to survive it must further a compelling state interest in a very narrowly tailored fashion.
No, you are correct. The HI program is racist and unconstitutional.
I don’t see why some people are objecting to the OP. There was obviously more to come, but it can and does stand on it’s own as a GD first post just fine.
It’s actually a good test to check if something is racist or not: Apply the same logic or rules to another situation.
The state’s interest in redressing earlier wrongful land takings has been addressed already, although without apparent effect on the unresponsive OP. One could argue that a wrong that took place long enough in the past becomes effectively unredressable without committing more wrongs against other people of the present day, and that people of the present day should just do the best with what they have. I generally think so myself.
But I suspect **Bricker ** wouldn’t accept that a government-sponsored wrong that took place, say, *yesterday * should similarly just be accepted, although that would be consistent with his argument that redressing “obviously” cannot meet the requisite standard of scrutiny and is therefore, flatly, government-sponsored racism.
So where, then, do you draw the line? At what point in time does the state of Hawaii no longer have a legitimate interest in correcting its own wrongs? If it’s the 1700’s for Virginia, why is it obviously not the 1800’s and early 1900’s for Hawaii? Some of the actual individuals whose land was stolen are even still alive, and many more of their immediate heirs certainly are. Why should they just have to suck it up when some method of compensation, call it affirmative action if you like, is available?
If we wanted to really redress the wrong, we’d owe the Chickahominy, Mattaponi, and Pamunky Indians a BIG chunk of money here in Virginia.
Easy. Just let 'em build casinos. That works in a lot of other states already.
Just to throw some more sand in the gears: the Hawaiian proposal is not actually “race based.” Despite the use of the word “races” in the 1921 legislation, there is no provision to permit anyone from Tahiti or the Solomons or Kiribati to successfully apply for the benefit.
What the law provides is that descendants of the original inhabitants, with a minimum of immigrant admixture, can apply.
So, if the actual law is based on aboriginal ancestry and not on race, do we still have a problem with it?
That analysis applies equally to the hypothetical in the OP, btw. Not that you claimed it didn’t, but I’m just pointing that out. Would you have a problem with the OP’s proposal?
It’s still based on race, because the law has the practical affect of disproportionally benefiting a specific racial group.
I do.
In my view, a classification based on ancestry is just as subject to strict scrutiny as an overtly racial classification.