On December 6, 2001, an important memo was sent from the chairman of the U.S. Senate Republican Policy Committee to all Republican Senators, and to the Democrat leadership. The memo was writtem by Mr. Lincoln Oliphant at the request of the chairman, Senator Larry Craig. This memo makes clear why the Native Hawaiian Recognition bill would be bad public policy and is unconstitutional. The memo also severely criticizes the stealth tactics used (by Senator Inouye) two years in a row to try to sneak this highly controversial bill past the Senate by burying it deep inside a major appropriations bill at the last moment during the rush toward adjournment for the holidays. Here is the full text of that memo:
Honorable Larry E. Craig, Chairman Republican Policy Committee United States Senate Washington, District of Columbia RE:
"NATIVE HAWAIIANS BILL" (S. 746) THAT WOULD ESTABLISH A SEPARATE
GOVERNMENT OF NATIVE HAWAIIANS AND REQUIRE THE UNITED STATES TO RECOGNIZE
SUCH GOVERNMENT HAS BEEN ADDED TO THE DEFENSE APPROPRIATIONS ACT (H.R.3338),
NOW ON THE FLOOR Dear Mr. Chairman: * The Constitution of the
United States promises the equal protection of the law. The 14th
Amendment says, "No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws." * There is a comparable
promise of equal protection with respect to the Federal Government.
The Supreme Court derived that promise from the due process guarantees
of the 5th Amendment. Bolling v. Sharpe, 347 U.S.
497 (1954). * The Constitution guarantees
a right to vote without discrimination on account of race or color.
The 15th Amendment says, "The right of citizens of the
United States to vote shall * The Voting Rights Act
of 1965, as amended, says that "No voting qualification or prerequisite
to voting or standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United States
to vote on account of race or color. . . ." * Although Article I, Section
8, clause 3 gives Congress express constitutional authority to "regulate
Commerce with foreign Nations, and among the several States, and with
the Indian Tribes," there is considerable doubt that Native Hawaiians
are an Indian tribe or that Congress can make them one. (In
Rice v. Cayetano, 120 S. Ct. at 1057-58, the Supreme Court said
the question is "of considerable moment and difficulty" and
"of some dispute" but not necessary to its decision in that
case.) Regardless of any nuances of Indian law, however, this bill
raises constitutional, legal, and policy questions on some of the country*s
most sensitive issues relating to race, ethnicity, preferences, and
voting. "The purpose
and command of the Fifteenth Amendment are set forth in language both
explicit and comprehensive. The National Government and the States
may not violate a fundamental principle: They may not deny or abridge
the right to vote on account of race. . . . "The design
of the Amendment is to reaffirm the equality of races at the most basic
level of the democratic process, the exercise of the voting franchise.
A resolve so absolute required language as simple in command as it was
comprehensive in operation, the Amendment prohibits all provisions denying
or abridging the voting franchise of any citizen or class of citizens
on the basis of race. . . ." 120 S. Ct. at 1055. "Ancestry
can be a proxy for race. It is that proxy here. . . . The State, in
enacting the legislation before us, has used ancestry as a racial definition
and for a racial purpose." Id. at 1055-56. "When the
culture and way of life of a people are all but engulfed by a history
beyond their control, their sense of loss may extend down through generations;
and their dismay may be shared by many members of the larger community.
As the State of Hawaii attempts to address these realities, it must,
as always, seek the political consensus that begins with a sense of
shared purpose. One of the necessary beginning points is this principle:
The Constitution of the United States, too, has become the heritage
of all the citizens of Hawaii. "In this case
the Fifteenth Amendment invalidates the electoral qualification based
on ancestry. . . ." Id. at 1060. "The Court
is presented with the question of whether the United States Constitution
allows the racial restriction on [Office of Hawaiian Affairs] trustees
as one of the means by which the State of Hawaii may effectuate the
goal of bettering the conditions and restoring and maintaining the culture
of Hawaiians. In considering the questions presented by the parties,
the Court is mindful that ours is a political system that strives to
govern its citizens as individuals rather than as groups. The Supreme
Court*s brightest moments have affirmed this idea,
see, e.g, Brown v. Board of Education, 347 U.S.
483 (1954) (holding that establishing separate schools by race violates
the U.S. Constitution); Bolling v. Sharpe, 347 U.S. 497 (same);
Cooper v. Aaron, 358 U.S. 1 (1958); while its darkest moments
have rejected this concept. See,
e.g., Dred Scott v. Sandford, 19 How. 393 (1856) (denying
citizenship to blacks); Plessy v. Ferguson, 163 U.S. 537, 552
(1896) (permitting separate train cars for blacks and whites);
Bradwell v. Illinois, 83 U.S. 130 (1872) (upholding state law
that barred women from practicing law);
Korematsu v. United States, 323 U.S. 214 (1944) (upholding the
internment of persons of Japanese ancestry during World War II). "The Fourteenth
and Fifteenth Amendments to the U.S. Constitution were enacted as part
of the effort to exorcize race as a factor upon which the government
may base its treatment of its people.
See Shaw v. Reno, 509 U.S. 630, 657 (1993) (stating that a goal
of our political system is to make race no longer matter). Racial classifications
are particularly harmful when used with respect to voting, as they threaten
to *balkanize us into competing racial factions.*
See id." Order Granting Plaintiffs* Cross Motion for Summary
Judgment and Denying Defendants* Motion for Summary Judgment at 2-4 (typewritten),
Arakaki v. Hawaii, D. Hawaii, Civil No. 00-00514 HG-BMK (filed
Sept. 19, 2000) (on appeal to the 9th Circuit). cc: The Majority Leader The Assistant Majority
Leader Other Republican Senators