The following is an excerpt from testimony given before the Hawai'i Advisory Committee to the United States Civil Rights Commission on Aug. 20.

The Native Hawaiian Government Reorganization Act of 2007, a bill that has been introduced in both the U.S. House of Representatives and the U.S. Senate, is not the easiest 22 pages of prose that you'll ever read, but I think I can boil it down to this:

The bill will use a one-drop rule to define membership in an ethnic group, namely Native Hawaiians, which it will then allow to organize itself into a governmental entity that can claim a "special political and legal relationship" with the U.S. government of "the type and nature (that the U.S. government) ... has with the several federally recognized Indian tribes."

Members in this group will be made separate and distinct from the rest of the people in your state, will be able to claim preferences more easily than other racial and ethnic groups, and will be able to claim special economic and political power and authority in Hawai'i.

I don't like this bill, and the objections to it fall into two basic categories: First, that it is unconstitutional; and, second, that even if it were constitutional, it would be a bad idea.

Let me talk about the constitutional problems first. The Equal Protection Clause of the 14th Amendment makes it illegal for any state to "deny to any person within its jurisdiction the equal protection of the laws."

The Supreme Court has ruled that the Due Process Clause of the Fifth Amendment makes it illegal for the federal government to deny equal protection as well. The definition of "equal protection" can be complicated, but one thing that it definitely applies to is treating people differently because of their race or ethnicity.

The Supreme Court, in its 2000 ruling in Rice v. Cayetano, ruled explicitly that Native Hawaiians are an ethnic group, and that it is illegal to give anyone preferential treatment on account of their membership in that group.

Putting this together means that Congress cannot pass a law that gives Native Hawaiians the special right to organize into a separate group that can claim, in turn, still more special rights.

But even if you thought that Congress had the authority to pass this bill, it would still be a bad idea for it to do so.

The United States is a multiracial, multiethnic society. Hawai'i also has this multiracial and multiethnic description, if not more so.

In such a society, it is simply untenable to have a legal regime where some of us are singled out for special treatment.

It would be especially dangerous to pick a large group out of that population, and not only allow them special treatment, but give them a separate government and rights. What could be more divisive than that?

Roger Clegg is president and general counsel for Virginia-based Center for Equal Opportunity.