COUNTERPOINT
Hawai'i pushing states' rights
By Robert M. Rees
The Economist magazine once opined that Hawai'i's political system lies somewhere between Japan's and Louisiana's. Now, however, with the adoption of the states' rights doctrine by the attorney general's office, it appears we are becoming more like the regressive parts of America's Deep South.
States' rights, discredited by the U.S. Civil War and again by the assaults of the Dixiecrats on civil rights in the 1950s and '60s, is now being pushed along by a conservative 5-4 majority of the U.S. Supreme Court.
To gain ground for what is called the New Federalism — the idea that the U.S. government has too much power and the states not enough — the U.S. Supreme Court has applied a pincers movement. One claw is an expanded view of the 11th Amendment, now seen by the court to offer states immunity from lawsuits by private citizens in federal courts. The other flank consists of new constrictions on the ability of Congress to impact the states by exercising its power to regulate interstate commerce.
Hawai'i, which in its brief history has been subjected to three federal consent decrees — for mistreating disabled children, prison inmates and the mentally ill — sees the New Federalism as offering immediate relief from federal prohibitions on how Hawai'i mistreats its citizens.
When Congress passed the Religious Freedom Restoration Act, requiring the states to show a compelling reason for restrictions on the free exercise of religion, Hawai'i's concern was that some of its prison inmates might refuse haircuts for religious reasons. Based on this, our attorney general's office, in an amicus brief to the U.S. Supreme Court, challenged the act as an unconstitutional infringement on states' rights.
The Supreme Court overturned the act in 1997, and this reversal of a federal imposition on the states evidently got our AG's office to thinking. Confronted with a myriad of lawsuits aimed at Hawai'i's wrongdoing, the AG's office filed an amicus brief to the U.S. Supreme Court in the case of University of Alabama v. Garrett.
Hawai'i's brief supported Alabama's view that when Congress passed the Americans with Disabilities Act, Congress exceeded its authority by subjecting states to private lawsuits in federal court. In a limited decision early in 2001, the court overturned parts of Section I of the ADA.
A month later, based on that Alabama case, our AG's office filed a motion in the U.S. District Court of Hawai'i to dismiss the pending class-action suit on behalf of those who had been acquitted by reason of insanity, but who had nevertheless been wrongfully incarcerated in prison by Hawai'i.
Our AG's office reasoned that the limited decision in Garrett should be expanded to mean that those wrongfully sent to prison cannot hold Hawai'i accountable in federal court. District Court Judge David Ezra didn't agree, but Hawai'i has appealed to the Ninth Circuit Court of Appeals.
It is true that states' rights, like all doctrines in jurisprudence, is a two-edged sword and can be used for good as well as evil. Right now, for example, Oregon is relying partly on the doctrine to oppose federal interference with Oregon's physician-assisted suicide.
Hawai'i and others unsuccessfully used states' rights in supporting a New Jersey law that prohibited the Boy Scouts from excluding gays. (Because in that same year, our AG's office erroneously advised the state Senate that it need not be concerned with reciprocal rights for same-sex couples, one might assume Hawai'i's interest was more in states' rights than in equal protection.)
For the most part, however, the New Federalism is a dangerous doctrine, one that inhibits the federal government from coming to the aid of oppressed minorities. It is not surprising that the support of our AG's office for states' rights has grown in direct proportion to the increasing enormity of a shameful record that cries out for federal intervention.
Robert M. Rees is moderator of O'lelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands."
