The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Thursday, May 25, 2006

Banner Time
Shaun Martin

I don't know about you, but when I pay thousands of dollars to take myself and my family to the beautiful beaches of Hawaii, I'm really not that interested in looking out over the glorious sand and wonderful surf and seeing a 100-foot long banner towed behind an airplane that contains graphic pictures of aborted fetuses.  Or anything else, for that matter.

Which is why Hawaii has long prohibited airplane banners -- of any type -- on its beaches.  And why Judge McKeown of the Ninth Circuit rightly upholds this prohibition against a First Amendment (and preemption) challenge in this opinion.  It's a well-written, and entirely correct, decision.

Feel free to pass out your literature and post your pictures on the sidewalks, at City Hall, and on the internet.  Just leave the sky over the beaches alone, okay?  That doesn't seem like it's asking for much.  From anyone -- both commercial advertisers and political activists alike.

May 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Making the email rounds
Tom Smith

A loyal reader sends this list of potential Congressional hearings, to go along with the hearing on the raid of "Icebox" Jefferson's home and office in connection with allegations he accepted wads of Bens in exchange for "consulting":

"With the hearing scheduled next Tuesday on the Saturday Night raid of Rep.
Jefferson, Congress has titled the hearing:

"RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the

There have been some other ideas for future hearings on the hill:

The best one I've seen:  "WARRANTS:  Not good enough for us, too good for

Some other notable suggestions for Congressional hearings:

"I BEG YOUR PARDON: Celebrating the vital role of Presidential pardons when
members of Congress get into a wee bit of trouble with the law."

"POVERTY IN AMERICA: The role of bribery as an essential component of the
Congressional compensation package."

"RADICAL UNANIMITY: How our extremist Chief Justice is using unanimity as a
smokescreen for his radical agenda to undo the New Deal."

"ELECTIONS:  Democracy in Action, or Unncessary and Damned Inconvenient?"

"CHECKS OR BALANCES:  Either's fine, we also take Cash."

"BEYOND THE ICEBOX:  What locations are the least likely to be searched by
the FBI?"

"JOB INSECURITY IN AMERICA:  Do we really need to be reelected every two
years, or can we be appointed for life like the Judges?"

May 25, 2006 | Permalink | Comments (1) | TrackBack (0)

Expect a boatload of spam on this one
Tom Smith

Science brings us a landmark breakthrough on artificial, well, just read the story.  Just another sign that the Singularity is near.

In other news, this could come in handy.

Nannites one step closer to ruining your day.

Start up fever, c. 1878

This might be the anti-motorist weapon cyclists have been waiting for

May 25, 2006 | Permalink | Comments (0) | TrackBack (0)

U.S. Commission on Civil Rights Opposes Akaka Bill
Gail Heriot

Loyal readers may recall that I testified in opposition to the proposed Native Hawaiian Government Reorganization Act (known as the "Akaka Bill") before the U.S. Commission on Civil Rights on January 20th.  Recently, the Commission issued its Briefing Report in which it recommended against the passage of the controversial proposal "or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege."

Senator Akaka accused the Commission of failing "to give a fair and thorough review of [his] bill."  Senator Inouye asserted that the report contained "significant errors of fact and history" (although he made no effort to specify those errors).  As far as I can see, however, it is the bill's supporters who have failed to consider its ramifications.  Unfortunately, this is one of those issues that pits a few pathologically committed supporters who have considerable money and influence at stake against a larger number of mildly-committed opponents who have very little personally at stake. As a result, it's not clear whether the Commission's opposition will be enough to de-rail the bill.

Here is the op-ed I did for the San Diego Union-Tribune last summer:

Trouble in Paradise

"America's 50th State has always been known for its friendly and welcoming 'Spirit of Aloha.' But for the last decade or so, Hawaii has begun to earn a reputation for something else entirely: the nation's most divisive racial politics. And with the proposed 'Native Hawaiian Government Reorganization Act' (known as the Akaka bill) currently pending before the U.S. Senate, it may only get worse. A preliminary vote is scheduled for September 6.

Put simply, the Akaka bill will allow the nation’s approximately 400,000 ethnic Hawaiians to organize themselves into one vast Indian tribe--the largest in the nation. A commission appointed by the U.S. Secretary of the Interior and consisting of nine 'Native Hawaiian' commissioners with 'expertise in the determination of Native Hawaiian ancestry' will sit as judges to ensure that only those who can prove their Native Hawaiian bloodline are permitted to join.

Why would 400,000 American citizens want to retroactively declare themselves an Indian tribe? There's a good chance they don't. The only full-scale poll indicates that ethnic Hawaiians reject the notion of a tribe–48% to 43%–when they are informed that under a tribal government they would not be subject to the same laws, regulations and taxes as the rest of the state. And Hawaiians generally oppose the so-called 'reorganization' by an astonishing 2 to 1 ratio. But vocal leaders in the ethnic Hawaiian community, many of whom no doubt fancy that they will be the tribal leaders themselves, consider tribal status a top priority. And politicians are falling in line behind them. Senator Daniel Akaka, for whom the bill is named, claims to have the votes he needs to pass the bill.

To understand why ethnic Hawaiian leaders want tribal status, one must know a bit about Hawaiian racial politics. In an age in which racial entitlements are an unfortunate feature of the political landscape in so many parts of the country, Hawaii is in a league by itself. The State’s Office of Hawaiian Affairs administers a huge public trust–worth billions–which in theory benefits all Hawaiians, but for reasons that are both historical and political, actually provides a bonanza of benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians are eligible for special home loans, business loans, housing and educational programs. On the OHA web site, the caption proudly proclaims its racial goal, 'Office of Hawaiian Affairs: For the Betterment of Native Hawaiians.'

The problem for supporters of special benefits came in 2000, with the Supreme Court case of Rice v. Cayetano. Unsurprisingly, the Court ruled that the Constitution's Fifteenth Amendment, which prohibits States from discriminating on the basis of race in voting rights, applied to Hawaii just as it does to every other state in the union. Hawaii could not prohibit non-ethnic Hawaiians from voting in state elections for OHA trustees.

That ruling caused an uproar in Hawaii that has not yet subsided. If the Fifteenth Amendment prohibits Hawaii from limiting voting rights to ethnic Hawaiians, the Fourteenth Amendment’s Equal Protection Clause and other civil rights laws might prohibit all or part of the OHA’s massive system of exclusive benefits. Cases like the Ninth Circuit’s decision last month prohibiting the Kamehameha Schools from operating for the exclusive benefit of ethnic Hawaiians only added to this controversy. The whole racially-exclusive system is in legal jeopardy.

That’s where the Indian tribe idea comes in. States cannot discriminate on the basis of race except in extraordinary cases. But Indian tribes can. They are essentially exclusive racial groups and are not directly (or in many respects even indirectly) bound by the U.S. Constitution (or by most civil rights laws). If ethnic Hawaiians can be morphed into an Indian tribe, and the State of Hawaii can then transfer the OHA’s functions (and the vast acres of real estate and other property it administers) to the tribe, the racial spoils system can be preserved–or so its advocates hope.

There are many reasons that the Akaka bill is a bad idea–including a strong likelihood that both the bill and the overall plan to transfer the OHA’s functions and property to the 'tribe' are simply unconstitutional. If the State of Hawaii cannot confer preferential benefits on its citizens based on race, it cannot give away land and property to a newly-minted tribe created for the purpose of conferring benefits based on race. The Constitution’s requirements cannot be by-passed that easily.

But perhaps the most important reason to oppose the Akaka bill is the disturbing precedent it sets. The United States has long recognized the sovereign status of Indian tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Our policy towards them was simply a bow to reality.

By retroactively creating an Indian tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, the Akaka bill will be breaking new ground. If ethnic Hawaiians can be an Indian tribe, why not Chicanos in the Southwest? Cajuns in Louisiana? Religious groups–like Orthodox Jews in New York or the Amish in Pennsylvania–may be particularly interested in gaining tribal status, since doing so will arguably allow them to take on governmental authority without being subject to Constitutional prohibitions on the establishment of religion. Who will say no to these (and other) groups?

Earlier this month, Senator Akaka was asked in a National Public Radio interview whether the sovereign status granted in the bill 'could eventually go further, perhaps even leading to outright independence.' The question might have seemed extraordinary for anyone unfamiliar with how strong the push for Hawaiian independence has become. Back in the 1970s, its supporters were considered kooks and lunatics. But today, although by no means a majority, they are a political force to be reckoned with. It’s hard to drive down a Hawaiian road without seeing an upside down Hawaiian flag, the symbol of the movement, flying over someone’s home. Even more extraordinary was Akaka’s answer: 'That could be. That could be. As far as what’s going to happen at the other end, I’m leaving it up to my grandchildren and great-grandchildren.'

Akaka’s fellow Senators should think long and hard about the whether the Akaka bill will, in the long run, lead to greater harmony among Hawaiians and among Americans–or less. Is our 'One Nation' indivisible or not?"

The September vote never happened.  Hurricane Katrina and other matters got in the way.  But a crucial vote is now set for early June.  I hope the Senate heeds the Commission's advice.

My other posts on the Akaka Bill can be found here, here, here, here, and here.

May 25, 2006 | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 24, 2006

9th Circuit Update
Tom Smith

They seem unhappy over at Powerline that the Ninth Circuit held it was not an establishment of religion for a middle school class to use a role playing game to teach about Islam.  Kids skipped lunch to simulate fasting, and did other play-Islam things.  The criticism seems to be that if the same exercise had been used for Christianity, having children pretend to be wise men visiting the baby Jesus, for instance, it would surely have been ruled an establishment.  That may be true, and it would be bad if it were so.  But it's probably a bad idea to hope that a court applies stupidity uniformly, at least, I think it is.  The next time the Ninth Circuit makes it unconstitutional to say "God bless you" after a sneeze, or whatever their next outrage is, then it will be time to get upset.  But it doesn't seem so bad to let kids play at being religious, without sending in the police.

May 24, 2006 | Permalink | Comments (3) | TrackBack (0)

What Message?
Shaun Martin

Venezuela's President Hugo Chavez is apparently (or at least allegedly) upset that a Los Angeles-based company called Pandemic Studios has released a video game that simulates the invasion of Venezuela by the United States.  One Venezuelan lawmaker characterizes this video game as part of a "campaign[] of psychological terror [by the U.S. government] so they can make things happen later."

A couple of brief comments.  First, if you're at least somewhat of a jerk, we rarely make video games depicting your invasion.  Maybe look a little bit in the mirror, President Chavez.  Second, you know you love it, Hugo.  Oh, yeah, you claim you're really upset.  But given that your retention of power is based in (seemingly increasing) part upon whipping up fear that the U.S. is poised to invade your country, I'm sure that news of the video game brought only a smile to your face.  More great publicity. "See, I'm not simply making it up.  Some third-tier, privately run video game company in California finds it not laughable that one day we might be invaded.  What better evidence could you have of the pending attack?!"

Finally, President Chavez, how could you possibly believe that the U.S. Government would try to influence foreign policy through such absurd means?  How laughable.  Oh, wait.  I guess we do precisely that.  Even with video games.

Never mind.

May 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Having trouble sleeping? Just think about how fat you will become
Tom Smith

Don't you just love studies like this?  If you have trouble sleeping, you are more likely to gain weight.  Not sleeping makes you hungrier, apparently.  Or maybe it's just that some people get all the luck.  "I sleep like a log every night!  And I eat what I want and don't gain weight!  Just lucky I guess!"  Remember, it is wrong to kill people who say this.

May 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Cleaning House?
Mike Rappaport

Glenn Reynolds notes that congressional Republican criticism of a search of a congressional office is unpopular with the Republican base.  Damn right it is!!!  I hate to follow the heard, but the only argument these people (Republicans) have going for them is who they are running against.  I am not sure that is enough -- for me at least.

May 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 23, 2006

Can Congress Censure Jimmy Carter?
Gail Heriot

For the past several weeks, I have been receiving e-mail solicitations from a conservative activist group entitled "Move America Forward" urging me to contribute money to a television campaign urging Congress to censure Jimmy Carter.  So far, I have declined.  I am not a Carter sympathizer.  His knee-jerk anti-Americanism and his support for the most demented tin-pot dictators have been embarrassing for many Americans, both liberal and conservative.  But I see little benefit to drawing attention to the matter.  Carter is our crazy aunt in the political attic.  We just have to live with him.

Evidently, Move America Forward found enough folks with extra cash on their hands to make the television ads without my money.  The "Censure Carter" ads started airing recently on CNN and Headline News.  And their airing raises an interesting question:  Does Congress have the power to censure Jimmy Carter?  Or would such an act constitute an unconstitutional "Bill of Attainder."

A few years back, this issue was briefly debated as part of the Clinton impeachment hullabaloo.  Some members of Congress proposed as a compromise that Clinton be censured instead.  Others argued that the sole method by which a sitting President can be disciplined by Congress was through the impeachment power. 

The argument runs this way:  Congress undoubtedly has the power to censure its own members though Article I, Section 5, which allows each house to "punish its Members for disorderly Behavior."  But nothing in the text suggests it may censure a sitting President, an officer of the United States, or a private citizen (Carter).  Indeed, the prohibition on bills of attainder--legislative declarations that single out a individual for punishment without the benefit of the judicial process--arguably makes such censures unconstitutional. 

The question, of course, is whether a censure constitutes punishment.  My uninformed inclination is that it does.  That's why some people think it's worth doing.  Should Congress be permitted to censure criminal defendants before trial on the ground that the censure does not constitute a punishment?  That doesn't sound right to me.  If Congress can't do that, it's not clear to me how it can censure Carter.

May 23, 2006 | Permalink | Comments (3) | TrackBack (0)

The Symmetry Thesis
Mike Rappaport

Is this brilliant, or scary, or both?

May 23, 2006 | Permalink | Comments (0) | TrackBack (0)