- The Washington Times - Friday, May 5, 2000

One issue that the Supreme Court generally gets right is race. The Constitution means what it says, and there must be a truly compelling reason to justify treating people differently on that basis. Recently, in a case titled Rice vs. Cayetano, it struck down a provision of the Hawaii Constitution that imposed race-based voting restrictions. The implications of this decision may be much broader.
The Hawaii Constitution restricted the right to vote for trustees of the Office of Hawaiian Affairs to a category of citizens labeled "Hawaiians." This group is defined by statute as descendants of people inhabiting the Hawaiian Islands in 1778. A citizen of Hawaii who lacked this specific ancestry brought suit because he was barred from voting in the trustee election. The Supreme Court concluded that this violated the Constitution's 15th Amendment, which states: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
The Supreme Court went to great lengths to explain that the constitutional principle involved here is absolute. As Justice Anthony Kennedy described it, the 15th Amendment establishes a "fundamental principle" in "language both explicit and comprehensive." It reflects an "absolute" resolve in "language as simple in command as it [is] comprehensive in reach." Justice Kennedy wrote: "Fundamental in purpose and effect and self-executing 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."
Period. No exceptions.
Since it appeared that such an absolute principle could easily decide this case, Hawaii had just two arguments. First, Hawaii tried to call this voting restriction something it is not, arguing the policy was "not a racial category at all" but one based on ancestry. The court said, however, that the 15th Amendment prohibits not only explicitly race-based provisions, but also those that use "a proxy for race" to accomplish the same thing. That is, calling a race-based restriction something else won't work.
Hawaii then argued that its race-based voting restriction was similar to race-based policies the Supreme Court had previously upheld. And here's the problem for the Supreme Court: The more absolute the principle, the broader should be its application. In its 1974 decision in Mancari vs. Morton, the Supreme Court upheld "a federal provision giving employment preferences to persons of tribal ancestry." Hawaii was right that its race-based voting restriction was similar to the race-based employment restriction upheld in Mancari and that the result should be the same. The Constitution's fundamental principle of equality forbids both of them. The Supreme Court, however, tried to act like Solomon and split the baby in half, ruling that the Constitution forbids Hawaii's voting restriction but the Indian preference law was "unique."
The distinction here is without a constitutional difference, especially because the Supreme Court itself did what it had forbidden others to do. In Rice, driven by the constitutional principle involved, the Supreme Court said an obviously race-based restriction was impermissible. It rejected Hawaii's attempt to say that the restriction is "not a racial category at all." Relabeling, the Supreme Court said, would not save the racial preference. Earlier in Mancari, driven by the results it wanted to reach, the Supreme Court had said an obviously race-based restriction was permissible because "the preference [was] political rather than racial in nature." Relabeling saved the racial preference.
Either it is legitimate to avoid the Constitution by relabeling a racial preference or it is not. When the Constitution and a Supreme Court precedent conflict, the Constitution must win because it is law and a conflicting precedent is not. Even legendary liberals such as Justice William Douglas have acknowledged that "above all else… it is the Constitution which [the judge] swore to support and defend, and not the gloss which his predecessors may have put on it." Justice Felix Frankfurter wrote that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." Gimmicks such as relabeling or declaring the context in which a case arises as "unique" is simply not sufficient to overcome a constitutional principle so fundamental and absolute.
Both the U.S. District Court and the U.S. Court of Appeals in this case believed that Hawaii's relationship with Hawaiians is similar to the United States' relationship with Indian tribes. They were right and the U.S. Constitution applies to both of them. Rather than preserve a precedent through verbal sleight-of-hand, the Supreme Court should have said the fundamental constitutional principle that decided Rice also calls its precedent in Mancari into question.

Thomas L. Jipping is director of the Free Congress Foundation's Center for Law & Democracy.

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