APARTHEID CORRECT IN HAWAII

"Apartheid" means "apartness"

Congress considers setting up a race-based government for Native Hawaiians: Some congressional staffers are calling it "the worst bill most voters have never heard of." Hyperbole aside, the Senate is preparing to take up legislation that would create an independent, race-based government for Native Hawaiians. If this bill becomes law an entrenched racial spoils system will hand benefits to as many as one-fifth of the state's population and could inspire mainland groups such as Hispanic separatists to seek similar spoils, should they ever gain enough political leverage.

This isn't how it was supposed to be in Hawaii. In 2000, the U.S. Supreme Court voted 7-2 to undo a previously established race-based system. Under that system non-Native Hawaiians were barred from voting for trustees overseeing the state's Office of Hawaiian Affairs. The ruling, which was joined by liberal Justices David Souter and Stephen Breyer, found that a Hawaiian law requiring that the trustees be Native Hawaiians and elected only by other Native Hawaiians was obviously discriminatory. "There can be no such thing as either a creditor or a debtor race," wrote Justice Antonin Scalia. "In the eyes of government, we are just one race, it is American."

Rather than accept colorblind government, however, supporters of racial restrictions have tried for five years to negate the court's ruling by pushing a measure called the "Native Hawaiian Reorganization Act" or, for short, the "Akaka bill," after Hawaii's Sen. Daniel Akaka, a Democrat. The bill would skirt the Fifteenth Amendment's constitutional ban on race-based governments by requiring that Washington, D.C., recognize Native Hawaiians in the same manner it recognizes separate governments for American Indians and Alaska natives.

That comparison, however, quickly falls apart. It's true that the Founders (and the British before them) recognized Indian tribes to be separate, sovereign governments. They signed treaties with tribes and carved out territory for tribes to occupy--a system of separation that never led to equality. But in Hawaii, the history is demonstrably different. When the island chain became a state in 1959, there was a broad consensus in Congress that Native Hawaiians would not be treated as a separate racial group, and that they would not be transformed into an "Indian tribe." Indeed, Native Hawaiians have never asked to be recognized as an Indian tribe; they not only lack their own system of laws, but are widely geographically distributed throughout Hawaii and have a high rate of intermarriage with other groups.

Reversing this policy with what would amount to federal recognition of a "tribe" for Native Hawaiians today would create an independent state within a state that would lie outside the Constitution and laws of the United States as well as those of the state of Hawaii. The Akaka bill would also authorize the transfer of a portion of Hawaii's state-owned lands, natural resources and other assets to the new race-based government (at no cost to that new government, of course). Hawaiians would also be unable to fight back, as the state does not allow for referendums. And, just as on American Indian land, a shopkeeper who is part Hawaiian could claim exemption from state taxes and other laws, giving him an advantage over his next-door, non-Native Hawaiian competitor.

Not surprisingly, there is strong public skepticism in Hawaii about the establishment of what would amount to racial enclaves. "It's telling that there have been no public hearings organized by the state, the University of Hawaii, the state's congressional delegation or the Office of Hawaiian Affairs to determine if there actually is support for the Akaka Bill," says Malia Zimmerman, the editor of the news service HawaiiReporter.com. "There is a complete atmosphere of silence in the state government and mainstream media about this bill's weaknesses."

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INCORRECT FURNITURE

In the sphere of government intervention, there are varying degrees of intrusiveness, and generally the more important the government's purported goal, the more "butting-in" people are willing to tolerate from their elected officials. In fact, when something as crucial as national security is at stake, citizens will put up with an alarming degree of intrusion and Big Brotherism (grist for a whole column on another occasion, perhaps). But surely not even the most statist-minded of voters will be of a mind to stomach government meddling over something as personal and subjective as good taste.

That's what I'm hoping, anyway. And we'll soon find out because the city of Anderson, South Carolina should serve as a perfect test case. There, Mayor pro tem (which one can only imagine is a Latin term meaning "can't mind her own business") Bea Thomson is working on banning people from plunking indoor furniture on their outdoor porches. People who violate the law will be fined $1,000. What next? A city ordinance outlawing white shoes after Labor Day on pain of sacrificing a month's pay check?

Now, maybe Ms. Thomson has an aesthetic point when she says, "Your house could look a little bit better...if you had the appropriate porch furniture [and didn't] store refrigerators on your front porch."

You don't often find random kitchen appliances or La-Z-Boys strewn about the posh patios featured in outdoor Martha Stewart spreads. But whether or not your porch is deserving of a design award should be up to you, not your city council.

The idea that anytime your property could "look a little better" you should expect a law to be passed forcing you to make it so, is awfully disturbing. There could soon be garden police roaming the yards of Anderson and issuing citations to those who have not adequately color-coordinated their seasonal blooms ("Sorry, ma'am, but your delphiniums clash with your hydrangeas, so I'm going to have to write you up.") The kids of the area could be heavily fined for leaving anything but the latest and most stylish models of bicycles and skate boards in plain sight of passersby. And it might not be long before the law is all over any family who kits out its deck in anything from last year's Restoration Hardware catalog, since this year's merchandise is so much more pleasing to the eye.

The offensive ordinance is set to be passed next month. Unless, of course, the residents of Anderson decide to stand up for their rights to be as tacky as they wish on their own property and to place upholstered loveseats on their porches whenever they darn well please.

You might think that putting up such opposition would be a no-brainer. It seems obvious that it should be none of the government's business whether or not a person's own home could, in the city council's bureaucratic view, look "nicer" or be put to a "better" use than the one the owner has chosen. Yet the residents of Anderson can be forgiven if they are a bit confused about their rights given that the United States Supreme Court came to a contrary conclusion in its recent Kelo decision. There, a majority of the justices held the government can use its power of eminent domain to forcibly boot a homeowner out of his house if someone else could make more money from the property.

Thankfully, the misguided Anderson council has not gone so far as to suggest that residents who commit the style faux pas of putting a couch out on the porch should lose the titles to their homes.

But the dreadful course that eminent domain law has now taken should be a reminder to Andersonites of why they should fight the ridiculous proposed ordinance tooth and nail.

The area busybodies may seem harmless enough when all they are going after is inappropriate patio furniture. But their invasive attempts to control will not seem nearly so trivial or easy to brush off when they escalate their orders to destroy or vacate a home entirely, as so many municipalities and towns have now begun to do under the guise of urban development and community betterment. The core of property rights is too easily lost when the apparently frivolous benefits (like the right to stick a plaid ottoman on the porch) are not sufficiently guarded.

Let's hope the good folks of Anderson, South Carolina understand that. Otherwise, the city may soon suffer the fate the Kelo decision threatens to bring upon the whole country: Becoming one of the prettiest, most profitable places no one wants to live.

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