Moderator’s Note: This thread seems to have finally come around to discussing the actual topic Bricker wanted to discuss, but the way the OP was framed was pretty borderline as an acceptable opening thread in this forum. There is really no reason not to have started the thread with a discussion of the actual Hawaiian case that Bricker wanted to discuss. It’s also not like Great Debates has been overrun with dozens of hot and heavy debates about the Hawaiian law in question and we needed some kind of disguised thread from left field to give a “fresh perspective” on the issue. An OP which discussed the Hawaiian law could even have included the stuff about “preserving pure Virginia bloodlines” as an explicit analogy.
I’m in favor of the OP’s proposal, because it would keep Virginians from leaving home and lesson their influence on other states.
I’m against Hawaii’s proposal because [del]Hawaiin land is WAY better then Virginian land[/del] it’s Nazi fascism.
Clearly, genetic freedom is at stake.
sigh
Bricker, I’m sorely disapointed in you. All the time, people on the boards make arguments that confuse morality with legality, usually arguing (as in the case about the woman who was forced to show ID on a bus entering a federal area) that if the government does something they see as wrong, that it MUST be unconstitutional, SURELY, or else what kind of a free country is this?!?!? You are almost always one of the first and clearest to state that what people think morally of an action has nothing to do with whether it is legally acceptable or with how the Constitution should be interpreted or applied. And I’m always very greatful for your ability to make that contribution in such clear and bold language. You’ve caused me to look differently at many issues and (I hope) trained me to see new issues in a more cool and dispassionate light.
Yet here you bait us (not deceptively I agree) with an analogy to which you invite moral judgement, only to spring on us the reply that the action in Hawaii which inspired the analogy is unconstitutional. The overwhelming reply, which you have failed to address, is “So what?!” You didn’t ask us whether your Virginian proposal was legal (and the only poster to address this issue before you revealed your analogy pointed out that is not); you asked what we thought about it. And in the case of a (formerly) oppressed and disenfranchised target population, as in Hawaii, we like it. It seekss to address a problem most of us in this thread agree is real, and if the courts rule that the current solution is not constitutional . . . well, ok, that’s too bad–we’d like to see else can be done.
If you want to show any consistancy with your usual outstanding job of separating legal and moral considerations, you either need to scrap this discussion and start a new thread with an OP that raises constitutional questions or follow through with what you started here and either tell us how the Hawaian law can be made constitutional or why it shouldn’t be. In either case, the question of whether the law passes legal muster is pretty much irrelevant to this thread.
Poster’s response: It was precisely for the reason that we had NOT been overrun by this issue that this approach was valuable: it introduced the mechanics of the scheme without the specifics, and permitted people to form an opinion on the mechanics WITHOUT the emotion-laden “we stole their land” business. When Hawaii was introduced, the reader hopefully had a brief cognitive dissonance experience that caused him to examine the actual Hawaii scheme more critically.
It’s unclear to me what “borderline” means here. I suppose it means that, to be safe, I should avoid use of this tactic in the future. Your call to make, of course, and I’ll comply if that’s the case.
Yes, I think that would be best.
Let me see:
Yes, the 14th Amendment forbids racial discrimination. It was supposed to do that from the date it was passed, but for reasons we won’t get into, failed to be used for that purpose for the greater part of a hundred years.
Now, it seems to me a while ago that some strict constructionist or other here pointed out to me that an effectual case has to include a remedy. You may not simply say, “Yes, that was a bad thing to do, and it will stop now. Too bad you were imprisoned falsely/had your life inheritance stolen/whatever. But we can’t redress the problem, just stop from recurring.”
In a case where institutionalized discrimination on the basis of race, ethnic discrimination, or whatever suspect classification, caused harm, is it contrary to the 14th Amendment to grant redress for that harm? Why or why not?
The “we stole their land” business *is * the central topic, the very *reason * for the Hawaii law. Not the technicalities of the mechanics.
To expand on Alan Smithee’s remarks, the law indeed does not derive *inexorably * from morality, but neither does morality derive from law. Morality is, however, critical. The letter of the law means nothing without the spirit of the law. Why then do you wish to discuss only the letter of the law? Do you expect greater understanding for yourself or others from *refusing * to consider why a law exists?
You really should get around sometime to expounding upon what seems to you a simple truth, that this law is flatly racist and therefore unconstitutional. That is, if you wish to convince anyone else.
You and I would clearly see this as unconstitutional. What do you think the SCOTUS could would say in light of their ruling in Grutter v. Bollinger. For simplicity sake, lets just assume we’re talking about the Rhenquist court of 2003 and not the current Roberts court (about which we know little).
Unless you look at Mancari, where SCOTUS upheld a preference for employment in the Bureau of Indian Affairs (BIA) to members of federally recognized tribes who have “one-fourth or more degree Indian blood.” The Court concluded that the Indian employment preference was not a “racial preference,” because it “is granted to Indians not as a discrete racial group, but rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”
The argument would be that, given the history or Hawaii and the HHCA, the State of Hawaii is in a unique trust relationship with the indigenous people of Hawaii, just as the Congress is with Native Americans. It’s not an argument SCOTUS has bought, but, oddly enough, new Chief Justice John Roberts actually argued for the State of Hawaii to uphold the “discrimination”.
One of the underlying issues here (aside from the legal ones) is the morality of imperialism. I do not believe that imperialism is always bad, and accordingly I don’t think the situation is as simple as “we took their land and gave them no redress.” I think we did give them redress: our culture, something I think more valuable then the land. The reason we annexed Hawaii was because we thought our culture and government was better then theirs–I won’t reflexively assume that we were wrong in thinking that.
Before I get jumped down, let me point out that I’m undecided on this: I’m not saying we were right, just that I’m not going to assume we were wrong.
Aside from that, this law does strike me as blatant discrimination. Discrimination on the basis of ancestry is morally wrong, and antithetical to our national principles. The fact that we haven’t fully upheld this principle in the past doesn’t excuse us from upholding it now.
I won’t get into the 14th amendment (Alan Smithee already made the point about conflating morality with legality, and I’m concerned with morality); I can just say what I think should be the case. The native Hawaiians were not the ones who wanted to enter the Union; the white settlers were. It’s the same with the mainland native Americans. I believe that conquered peoples and their descendants should be allowed some degree of autonomy and separation from the conquering government. If you took over your neighbor’s house against his will and moved strangers in, would it be so wrong if he (or his kids) demanded that he be allowed to have a little corner of his yard for personal use, or would you say “sorry, you have to compete like everybody else” even though taking away his house destroyed his economic viability and thus his ability to compete on the same level as everybody else? Measures like this are the least we can do to address gross past wrongs (and I DO believe colonization is a gross wrong).
As for what it will do? It will return at least some of the land back to the people from whom it was stolen, which I believe is a good thing. It will give more economic opportunities to a people who, through no fault of their own, saw their standard of living go down due to invasion. I would rather see this measure impact the native Hawaiians as a whole instead of just leasing land to the individuals lucky enough to get on the list in time, just like I’m more in favor of slave reparations being given to groups instead of individual slave descendants, but I believe that this is a step in redressing the wrongs done to people who never wanted anything to do with the American government in the first place.
Holy cow, you want to make Virginians lease their land? Hell, here in Minnesota the native population gets to live on their land for free, and it was granted in perpetuity by the federal government. Sounds to me like you’re giving people of your home state a raw deal.