On Constitutionalism

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.


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5 responses to “On Constitutionalism

  1. Kingdom of Hawai`i and the united States of America relied heavily on the writings on Emmerich De Vattel’s Law of Nations. Vattel is cited many times in the Kingdom’s history, and the main reason the Kingdom made a Constitution and became a Member of the Family of Nations. The Na`i Aupuni or other processes violate the Law of Nations and Peremptory Norms the foundation for the reinstatement of the Kingdom of Hawai`i. If you are not following that…you are just another usurper like the five others usurpers since 1893.,


    • umi

      I have a list of some of the legal theory books that the King had at the time – I’ll make a post out of it – De Vattel was definitely there, but so was Montesquieu, Black and others


  2. Aloha e Umi,
    I “reminded” you that there were **NO** books written on the Hawaiian Constitutions because there are **NO** legal scholars or otherwise reading the Hawaiian primary sources—-i.e., all the constitutions themselves, and the documents around these including deliberations, letters, books, etc., This is because most scholars privilege the English language only record, since most lack the capacity to engage the work. Thatʻs what I said.


    • umi

      mahalo for the re-reminder – but do you think that proficiency is necessary when it comes to the bayonet constitution, written by the English-speaking traitors?


  3. Umi,
    this question for clarification: was Lee, a lawyer from Massachusets, not the
    writer credited for the Hawaiian Constitution (whatever was passed –and taken for substance). I remember saying to a class at ʻAtenisi University that the Tongan Constitution was in some way or part modeled (?) on the Hawaiian. Can you clarify it? Dates would help.


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