"Hawaii Divided" critique critique

In the Wednesday's Hawaii Reporter, conservative constitutional law expert Bruce Fein has a guest editorial introducing his "Hawaii Divided" critique (PDF) of the 1993 apology resolution and the proposed Akaka bill. The critique was placed into the Congressional Record by Sen. Kyl earlier this month.

I haven't had time to review it thoroughly yet, but I can say just looking at the first paragraph, that on one hand I agree with the basic premise that the apology was incorrectly directed exclusively to Native Hawaiians, instead of to all subjects of the Hawaiian Kingdom.

However, Fein then goes on to say:

Moreover, it seems preposterous to apologize for deposing a monarch to move towards a republican form of government based on the consent of the governed.

First, the basic principle of nonintervention in affairs of other countries is not suddenly void just because a country's form of government differs from that of the U.S. This is 100% irrelevant to the question of whether it was wrong for the U.S. to intervene in the affairs of Hawaii, and it is rather shocking for a so-called expert in constitutional law to make this argument. President Cleveland says it well:

While naturally sympathizing with every effort to establish a republican form of government, it has been the settled policy of the United States to concede to people of foreign countries the same freedom and independence in the management of their domestic affairs that we have always claimed for ourselves

Secondly, the Provisional Government and the so-called Republic of Hawaii were actually nothing more than an autocratic oligarchy. As President Cleveland reported to Congress, based the Blount Report:

[I]t appears that Hawaii was taken possession of by the United States forces without the consent or wish of the government of the islands, or of anybody else so far as shown, except the United States Minister. Therefore the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.

And he says:

Fair-minded people with the evidence before them will hardly claim that the Hawaiian Government was overthrown by the people of the islands or that the provisional government had ever existed with their consent. I do not understand that any member of this government claims that the people would uphold it by their suffrages if they were allowed to vote on the question.

And finally:

The provisional government has not assumed a republican or other constitutional form, but has remained a mere executive council or oligarchy, set up without the assent of the people. It has not sought to find a permanent basis of popular support and has given no evidence of an intention to do so. Indeed, the representatives of that government assert that the people of Hawaii are unfit for popular government and frankly avow that they can be best ruled by arbitrary or despotic power.

Look, these are the words of the POTUS himself at the time.

So does Fein really believe it was justifiable to illegally intervene in the affairs of another country in order to change a democratically elected constitutional monarchy to an oligarchy? Indeed, that seems to be the argument he is making, because that is exactly what happened. When he starts out with such a ridiculous argument in the first paragraph, it doesn't bode well for his credibility for the rest of his analysis. And as I look down through subsequent paragraphs, I see numerous examples of statements that are just plain factually wrong, contradicting the Blount Report and numerous other primary source documents of the time. For a supposed expert on constitutional law, his view of Hawaiian history seems to be based more on retroactive wishful thinking than actual facts, which is too bad for those valid points he does make.

Posted: Thu - June 23, 2005 at 12:22 PM

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"Hawaii Divided" critique critique

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