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 ongress
is back, and it will have to deal with two bad bills on civil-rights
issues that are making their way through the legislature.
Racial
Profiling
The first,
S. 989, purports to ban racial profiling. Hearings were held on
the bill before the Senate Judiciary Committee's Subcommittee on
the Constitution — chaired by the bill's principal sponsor,
Russ Feingold (D., Wis.) — on August 1. Senator Feingold is
likely to start trying to move the bill now that Congress has returned,
probably trying to schedule a mark-up for the bill this month.
Racial profiling
is bad policy and probably already illegal under the Constitution
— as S. 989 itself recognizes — but that does not mean
that the police must stop and arrest individuals in strict proportion
to their demographic representation in the general population. The
fact is that some groups — males, the young, and, yes, members
of some racial and ethnic minorities — commit crimes at higher
rates than others, and so it is only logical that they should be
stopped and arrested at higher rates, too.
The trouble
with S. 989 is that it would push the police toward using quotas
in their policies. It does so in two ways. First, it declares in
Section 102 (c): "Proof that routine investigatory activities
of law enforcement agents in a jurisdiction have had a disparate
impact on racial or ethnic minorities shall constitute prima facie
evidence of a violation of this title."
So, for instance,
if a police department decides to target high-crime areas for aggressive
policing, and high-crime areas have a relatively high number of
African Americans or Latinos, then its "routine investigatory
activities" will have a "disparate impact on racial and
ethnic minorities" and the department will have to prove that
the policy is not intended to be discriminatory. Proving a negative
is never easy, especially before a hostile judge or jury, and the
end result will be less effective policing. The real losers will
be the law-abiding citizens who live in minority neighborhoods.
Some civil-rights bill.
Incidentally,
Section 102 (c) is unconstitutional since it creates a prima facie
violation for policies that have a disparate impact on "minorities"
but not on nonminorities. This is a classic instance of a statute
that would "deny … the equal protection of the laws,"
in violation of the Fourteenth Amendment's text.
The second
way that S. 989 will encourage quotas is by dictating that police
departments collect racial and ethnic data about their stops and
arrests. As discussed in an excellent article by Katherine Kersten
in the August 20/27 Weekly Standard, traffic-stop studies
— like the ones S. 989 would require — are useless and
misleading. Worse, the result will be to push the police toward
getting their numbers "right," even if it means stopping
or arresting people who aren't really suspects, and letting people
go who are. If you are a policeman and you know you have already
stopped a couple of African Americans one evening, you are going
to hesitate before stopping a third. You would prefer to stop an
Asian, just for the sake of balance, even if you have sound reasons
for wanting to stop a third African American.
Native
Hawaiians
The other bad
"civil rights" bill before Congress is docketed as S.
746 in the Senate and H.R. 617 in the House. It provides for special,
favored treatment of "Native Hawaiians" among all other
racial and ethnic groups in Hawaii (and in the rest of the country,
for that matter). It even awards them quasi-sovereign status, giving
them the authority to create a "governing entity" and
the right to "self-determination and self-governance,"
as well as allowing them to receive "the transfer of lands,
resources, and assets."
"Native
Hawaiians" are defined as the "lineal descendants"
of the "aboriginal, indigenous, native people" of Hawaii.
This is, therefore, clearly a racial classification. Indeed, the
Supreme Court declared an identical preference scheme (in the voting
context) to be unconstitutional last year in Rice v. Cayetano,
reasoning that "Ancestry can be a proxy for race. It is that
proxy here." The bill uses a "one-drop" rule: Anyone
with any Native Hawaiian blood is deemed a Native Hawaiian.
So why do the
sponsors of S. 746/H.R. 617 think they can get away with this blatant
attempt to overturn a Supreme Court constitutional decision by simply
passing a statute? The theory behind this legislation is that Congress
can declare Native Hawaiians to be an Indian tribe, and then the
special treatment given to them will no longer be illegally racial.
But the problem is that, as a matter of historical fact and social
reality, Native Hawaiians aren't an Indian tribe, any more
than Mexican Americans and Irish Americans are. And it makes no
sense for Congress to want to push an ethnic group into being separate
and semi-autonomous the way that Indian tribes have been.
The latest
Census numbers also show that, on top of the historical and social
differences between Native Hawaiians and American Indians, the former
ethnic group is too mixed and too far-flung to be considered a "tribe."
The vast majority of Hawaiians with Native Hawaiian blood are of
mixed ethnicity. By contrast, the vast majority of those living
on Indian reservations consider themselves to be "pure"
Indians. On the Navajo Nation Reservation in Arizona, for instance,
almost all (99 percent) of the Navajos said they were "tribe
alone" versus tribe in combination with any other racial or
ethnic group.
The latest
Census figures also show that approximately four out of ten individuals
that the bill would consider "Native Hawaiians" do not
even live in Hawaii. Further, the percentage of them who are considered
Native Hawaiians only because of the bill's one-drop rule is likely
much higher than for those on the island — yet all of them
are awarded privileged status by the bill, too.
S. 756/H.R.
617 is just another racial pander, another attempt to play identity
politics, and more encouragement for some Americans to think of
themselves as something other than Americans first.
Unfortunately,
it has passed out of committee in both houses — bad enough
for the Senate, and simply inexcusable in the House. It, and the
racial profiling bill, need to be watched closely.
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