Those of you who follow this blog know of the special place in my heart for Hawaiian constitutional issues. Cato has even filed several Hawaii‐related amicus briefs; here’s my post about the latest one, last month. This is in part because thinking about the Constitution and individual liberty is even more fun in the context of palm trees, trade winds, and tiki bars, but more than that, developments in Hawaii tend to get overlooked or dismissed as parochial and “not really” relevant to the American project.
Unfortunately, that sort of benign neglect plays into the hands of those who want to wreak all sorts of havoc with our constitutional order. And once those who don’t care about limited government, individual liberty, and equality under the law gain a toehold anywhere, Honolulu as much as Hartford, that creates a dangerous precedent — a political and jurisprudential tsunami, if you will, that threatens to swamp the mainland.
Such is the case with the infamous Akaka Bill (which I most recently covered in a blogpost that links to my previous work on the subject). This bill, introduced in every Congress since 2000, would create a race‐based governing entity that would negotiate with the federal and state governments over all sorts of issues — effectively carving out a system of racial spoils.
Now, Hawaii’s senators, Daniel Akaka and Daniel Inouye, have long said that their pursuit of this legislation would always be above‐board and transparent… until a couple of weeks ago when Inouye, as chairman of the Senate Appropriations Committee, had a sentence inserted into the massive Interior Department funding bill allowing the federal government to recognize Native Hawaiians in the same way that American Indians and Native Alaskans are recognized (but without immediate federal benefits). This, combined with a state resolution labeling the “Native Hawaiian people” as the only indigenous Hawaiians, is part of a piecemeal strategy to get the Akaka Bill in through the backdoor.
For more coverage of these developments, see this report, as well as these two articles ($). For Hawaii’s fuzzy relationship with the Voting Rights Act, see this article. For reasons on why this is all not just sneaky but a terrible idea — and unconstitutional — again, see my previous writings.
At base, Hawaiians have a very different history and political sociology from the tribes that were accommodated in our (dubious and counterproductive) Indian law, which itself is a unique compromise with pre‐constitutional reality. It would be a shame to destroy that beautiful state’s spirit of aloha (welcome).
Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non‐Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education. (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)
The case was brought by Abigail Fisher, a white Texan denied admission to UT‐Austin even though her academic credentials exceeded those of admitted minority students. The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity. Judge Emilio Garza wrote an electrifying concurrence — starting at page 58 here — agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause.
The Fifth Circuit then denied en banc rehearing by a vote of 7–9, over a sharp dissent by Chief Judge Edith Jones. (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)
Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years — the Fifth Circuit provides a veritable roadmap for discriminatory state action.
Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good‐faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.
As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs — that they benefit minorities — and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.
Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race‐blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.
The well‐intentioned advocates of race‐conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.
Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension. If the university’s response arrives by January, the case — if the Supreme Court takes it — should be on schedule for argument and decision this term. For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.
Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.
Hawaii continues to think that it’s not quite part of the United States and thus not fully subject to U.S. law.
In the 2000 case of Rice v. Cayetano, the Supreme Court struck down race‐based voting requirements for certain Hawaii state officers because government schemes that distinguish between “native Hawaiian” and “Hawaiian” are racial classifications that must pass “strict scrutiny” to be deemed constitutional; they must be narrowly tailored to achieve a truly “compelling” purpose (a standard nearly impossible to meet). Yet that exact same category of “native Hawaiian” — whose frighteningly archaic definition is “any descendant of not less than one‐half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” — was used in the Hawaii Homes Commission Act to distinguish those who can hold certain leases that are subject to little or no property tax.
A group of Hawaiians who do not meet the state’s definition of “native Hawaiian” and therefore suffer under the explicitly race‐based law decided to challenge these property‐tax exemptions. After paying their taxes, these plaintiffs sought refunds on the grounds that the classification scheme violates the Fourteenth Amendment’s Equal Protection Clause.
The Supreme Court of Hawaii, however, ruled that they didn’t have standing — a legal doctrine that determines who can bring a claim — to challenge the taxes on the ground that they had not yet asked for the leases (for which they were indisputably ineligible due to not having enough “blood of the races” flowing through their veins). A lower state court had even ruled that the classification was not race-based—that it merely distinguishes leaseholders and non‐leaseholders, even though Hawaiians without the sufficient “blood quantum” cannot be leaseholders!
The group of taxpayers now seek review in the U.S. Supreme Court. Cato, joined by the Pacific Legal Foundation, the Grassroot Institute of Hawaii, the Goldwater Institute, and Professor Paul M. Sullivan, filed a brief urging the Court to take the case and rectify Hawaii’s explicitly unconstitutional taxation scheme. We argue that, after Hawaii’s state judiciary refused to address the issue of racial discrimination head‐on, only the U.S. Supreme Court is in a position to guarantee the constitutional protections that Hawaiians have lived under for over a century (since Hawaii became a territory). Only by taking this case and overturning the racially charged definition can the Court continue to ensure that Hawaii is a state that “neither knows nor tolerates classes among citizens.”
The Supreme Court will likely decide by the end of the year (or in early 2012) whether to hear this case, Corboy v. Louie.
For over a century, Montana citizens have used non‐navigable streambeds along their properties for various purposes without objection from the state government. The hydroelectric energy company PPL Montana and thousands of other private parties exercised their rights over these non‐navigable stretches that the state never claimed.
Last year, however, the Montana Supreme Court overturned well‐settled state property law by effectively converting the title in hundreds of miles of riverbeds to state ownership. The majority of the court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates the right to use rivers and riverbanks that Montanans had enjoyed for over a century.
PPL Montana thus asked the U.S. Supreme Court to review the state court’s decision; Cato filed an amicus brief supporting that request, which the Court granted. Now that the case is before the Court, Cato has joined the Montana Farm Bureau Federation, American Farm Bureau Federation, and National Federation of Independent Business on a brief supporting the property owners.
We are chiefly concerned with two parts of the Montana Supreme Court’s ruling: First, the court incorrectly evaluated navigability for the purpose of establishing title — finding the entirety of the rivers at issue navigable (and thus belonging to the state) because portions of them are — contravening the legal standard established by the U.S. Supreme Court in United States v. Utah (which analyzed the riverbeds section‐by‐section to achieve a “precise” assessment of navigability). Second, the court effectively transferred a substantial quantity of land from private owners to the state — a judicial taking that violates either the Fifth or Fourteenth Amendments (as the Court described in the recent Stop the Beach Renourishment case, in which Cato also filed a brief).
In short, the Court should reaffirm the Utah standard for navigability in the context of establishing title and protect private property owners against judicial takings. By doing so, it would send a strong message to state courts across the nation that judicial usurpations of property rights are just as unconstitutional as those undertaken by other branches of government.
The Court will hear the case of PPL Montana, LLC v. Montana late this year or in early 2012. Again, you can find Cato’s brief here.
That’s the upshot of a recent decision by the Seventh Circuit Court of Appeals in the case of Ezell v. City of Chicago. This was a challenge to the new regulations the city enacted in the wake of McDonald v. City of Chicago case, which applied the Second Amendment to the states.
In an attempt to circumvent the Supreme Court’s clear holding, Chicago’s ordinance first mandates that would‐be gun owners receive training at a firing range but then prohibits firing ranges from operating in the city. The court, in a striking opinion by Judge Diane Sykes (put her on your Supreme Court shortlist for the next Republican administration), tells the city to go back to the drawing board.
I won’t go into the details, but the court applied something greater than intermediate (but “not quite strict”) scrutiny and found that Chicago has not presented anything approaching a compelling reason for its restriction. Here’s an analysis of the opinion by Josh Blackman and some follow‐up commentary from Cato associate policy analyst Dave Kopel.
Gratifyingly, Judge Sykes cites the Pandora’s Box article that Josh and I published early last year in the run‐up to the McDonald argument (see footnote 11 on page 31). It’s quite an honor to appear in the same footnote as Randy Barnett, Steven Calabresi, Brannon Denning, Glenn Harlan Reynolds (the Instapundit), and many other noted scholars — including Akhil Amar, who in the wake of our Obamacare debate and bet may not appreciate it as much.
Congratulations to the intrepid Alan Gura (who also litigated McDonald and Heller v. District of Columbia) and to all the citizens of Chicago!
The liberties we Americans enjoy were hard‐won over the centuries. Today we mark a major event in that struggle, the day in 1215 when English barons presented King John with a written list of rights they demanded he recognize. Known ultimately as Magna Carta, the Great Charter, it was a compact between the barons and their king, a political effort by subjects to secure their liberty by placing their ruler under the rule of law, thus limiting arbitrary power.
The charter has gone through several iterations, but it drew in part from the common law rights, especially rights of property, that judges in the king’s courts had been finding from reason and custom as they decided controversies the king’s subjects brought before them. What Magna Carta did was bring those same rights against the king. Most important for us today was the promise found in clause 29:
No freeman shall be taken or imprisoned or deprived of his freehold or of his liberties or free customs, or outlawed, or exiled, or in any manner destroyed, nor shall we go upon him, nor shall we send upon him, except by a legal judgment of his peers or by the law of the land.
Note first the broad terms of clause 29: that enabled it to apply not just to the issues at hand but to varied future situations. Second, notice that only “freemen” were protected. The barons came to realize, however, that if their rights were to be maintained against the king, they would need the cooperation of all classes. Thus, the charter came in time to protect “common” liberties.
Each of those issues has informed the American experience. First, Magna Carta itself inspired our Founders to limit power through a written document, our Constitution. Second, clause 29 is captured in the Fifth Amendment, which provides that no person shall be deprived of life, liberty, or property, without due process of law. And third, Magna Carta’s capacity to grow is reflected by the post‐Civil War inclusion of the Due Process Clause in the Fourteenth Amendment. That brought the Bill of Rights to bear not only against the federal government, its original limit, but against the states as well. We owe much to this English inheritance.
Cross‐posted at the National Constitution Center’s Constitution Daily.
Throughout history, people have fought over beaches, including in the legal arena. In the latest case in which Cato has filed an amicus brief, a state has once again redefined property rights to take possession of highly‐valued beachfront property.
In 2003, Hawaii passed Act 73, which took past and future title to accretions (the slow build‐up of sediment on beaches) from landowners and gave it to the State, changing a 120‐year‐old rule. While waterlines are unpredictable, the original rule — common to most waterfront jurisdictions — helped establish legal consistency. Indeed, without such a rule, beachfront property becomes beachview property in just a few years.
In response to Act 73, homeowners sued the state, claiming that the law violated the Takings Clause of the Fifth Amendment or, in the alternative, the Due Process Clauses of the Fifth and Fourteenth Amendments. The state appellate court held that compensation was owed only for the accretions that had accumulated before Act 73’s enactment because the right to subsequent accretions had not “vested” (the legal term for when an expectation becomes an actual property right). Hawaii’s Supreme Court declined to review that ruling, so the property owners asked the U.S. Supreme Court to do so.
Cato, joined by the Pacific Legal Foundation, filed a brief supporting that petition and argues that the appellate court’s decision was contrary to long‐standing definitions of waterfront property rights. Our brief highlights the increasing need for the Court to establish and enforce a judicial takings doctrine.
More and more states are using backdoor tricks — like legislative “guidelines” and judicial creativity — to take property in violation of constitutional rights: This Hawaii case is distressingly similar to last term’s Stop the Beach (in which Cato also filed a brief). In that case, Florida took property by adding sand to the beach and then laying claim to the newly created land — in essence asserting that property that was defined by contact with the water (in technical terms, “littoral” or “riparian”) had no right to contact the water. The Court ruled that while Florida’s actions did not rise to the level of a judicial taking, a large enough departure from established common‐law rules could constitute a constitutional violation.
In this latest brief, we highlight both the largeness of Hawaii’s departure from established law and the spate of such actions in recent years — which circumstance calls out for Supreme Court review. The case is Maunalua Bay Beach Ohana 28 v. Hawaii and the Court will decide later this fall whether to take it up.