As the Hawaiian constitutional convention, or aha, approaches, for better or worse, some questions arise as to the intent and legitimacy of the process. This is the fourth in my “On” series.
In a few short months, a group of elected delegates will meet to write a constitution for what it sees as the Hawaiian nation. Many oppose this process, myself included, but it will be difficult to stop, and to get a majority to understand the problems with its authority. We must then ask whether this group will have expertise in constitution-making. It’s worth remembering that this is the second time we’ve been through this. The vote, or plebiscite, in 1996 created Ha Hawai’i, which began to convene in 1999, but ran out of steam (that is, funding around 2001-2002). Members of this original group may indeed have given serious thought to constitutionalism. This post is a brief reminder of what goes into constitutions, starting with the first constitution, the one Hawaiians would be breaking away from – the US constitution.
Aside from the Magna Carta forced upon King John in the 13th century, the US Constitution is the first modern constitution. Considering the slowness of a process such as “constitutionalism,” we should appreciate the fact that the Hawaiian Kingdom had a constitution only 50 years after the US – this is a very quick response to the trend of devolving power from monarchs to people, ideas and rules. Noe Arista reminded me that no books have been written on any of the three legal constitutions (there is one one the illegal Bayonet Constitution – Jon K. Osorio’s Dismembering Lahui.)
The US Constitution was drafted in a hurry, in a crisis and wasn’t expected to last long – maybe ten years. It was also the second American constitution – the first was the Articles of Confederation, which was such a failure it nearly caused war between the states! The US constitution had and has serious flaws, such as the three-fifths compromise and its very restricted voting rights. But its genius lies in the division of power between the branches of government, and its general approach of making laws difficult to pass, and power very difficult to concentrate. Some take a negative view of this – holding that it guarantees mediocrity and the the compromises necessary in such a system create absurd “catch 22s.” But we need to ask ourselves if the group elected will have the same desire to spread power among many rather than concentrate it among a few – perhaps themselves.
Further, we should ask where the influences underlying their approaches will be broad or predominantly American. Hawaiian elites in the Kingdom and their foreign allies (such as William Richards and John Ricord) knew that neither Roman law nor English common law could alone be the basis of a Hawaiian constitution and that it must choose the best of each. This is a serious question: will delegates have any familiarity with various legal systems or will they suffer from an American provincialism? Finally, questions as to the legitimacy of the entire process cannot be left unasked.