Is The Hawaii Supreme Court’s “Aloha Spirit” Consistent With A Republican Form Of Government?

Hawaii was admitted as the 50th state in 1959. The experience of the Hawaiian people was very, very different from the experience of the people in the other 49 states. The United States of America was established by overthrowing a monarch in 1776. Hawaii remained under the control of a monarch until 1893. During the Nineteenth Century, as the American states and territories lived with a right to keep and bear arms, Hawaii had no such protection. Justice Jackson recounts this history in her Wolford dissent:

Since its time as a sovereign kingdom, Hawaii has never permitted the widespread carrying of firearms in its territory. In 1833, King Kamehameha III of the Kingdom of Hawaii prohibited the possession of “dangerous weapon[s].” Translation of the Constitution and Laws of the Hawaiian Islands, Established in the Reign of Kamehameha III 163 (1842) (reprint 1934) (targeting possession of any “knife, sword-cane, or any other dangerous weapon”). Hawaii maintained this tradition of strictly regulating weapons both before and after it was annexed as a U. S. territory in 1898.

There was an extended discussion of whether Justice Jackson should have relied on racist Jim Crow laws, but the citation to Hawaiian monarchical laws is even more problematic. Why is it relevant that a King imposed a prohibition on carrying arms. King George III, and General Thomas Gage, imposed prohibitions on arms in the Massachusetts Bay colony. That violation of rights triggered the Revolutionary War, and inspired the Second Amendment. There is no reason to cite King Kamehameha’s laws as a means to interpret the Second Amendment.

The Hawaii Supreme Court has stated that it interprets the federal Constitution based on the unique legal history of the state. Justice Eddins of the Hawaii Supreme Court wrote in State v. Wilson that the “Aloha Spirit” should inspire how his court reads the federal Constitution:

In Hawai’i, the Aloha Spirit inspires constitutional interpretation. See Sunoco, 153 Hawai’i at 363, 537 P.3d at 1210 (Eddins, J., concurring). When this court exercises “power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people” we “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.'”  The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. See Haw. Const. art. IX, § 10 (“The law of the splintered paddle … shall be a unique and living symbol of the State’s concern for public safety.”).

The Supreme Court rightly rejected Justice Eddins’s reading of the Constitution:

As the plurality explained in McDonald, the Second Amendment has the same meaning in all parts of the United States. 561 U.S. at 784–785, 130 S.Ct. 3020. It cannot give way to “the spirit of Aloha” in Hawaii, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). It applies in the same way to our 50th State (where about 8% of adults possess guns) and our 49th State (where the figure is roughly 59%).Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.

The “Aloha Spirit,” whatever that is, developed from a very different legal, political, and social set of circumstances than the states on the mainland. Can a state supreme court justice, who takes an oath to the federal Constitution, base his decisions on a “spirit” that is inconsistent with the American history and tradition? Stated more bluntly, is the Hawaii Supreme Court’s “Aloha Spirit” consistent with a Republican form of government? Could a justice on the Massachusetts Supreme Judicial Court cite General Gage’s seizure of firearms to support the Commonwealth’s strict gun control laws? Is there a “Red Sox Spirit”?

Still, I think the problem goes even deeper. Justice Eddins seems to be saying that the Hawaiian legal system is alien from the legal system that developed on the mainland. I don’t think Justice Eddins (or his chatbot) has fully thought through the implications of that position. Indeed, there is a relevant Supreme Court case from 1901 about another territory:

If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.

Of course, this passage comes from Downes v. Bidwell, one of the Insular Cases.

The Hawaii Supreme Court argued the 50th state’s history was inconsistent with the Second Amendment. Perhaps the Constitution is inconsistent with the “Aloha Spirit.”

As states and their courts continue to go off the deep end, we need to give more thought to the Guarantee Clause. One question that has been on my mind: would a state that adopts an expressly socialist system of government be consistent with a Republican form of government?

The Supreme Court ducked the “invasion” issue in Barbara, but the justiciability of these sorts of questions are not going anywhere.