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I had never seen it done before in any other law class, but, to my surprise, Professor Jon Van Dyke (law students affectionately refer to him as "JVD")on his first day of class instruction (for American Constitutional Law) decided to discuss Hawaiian history. There's around 100 students in the class with about 13-14 aboriginal Hawaiian students in the class. I considered this to be monumental, discussing Hawaiian history on the first day, because, it's something that is generally not done on the first day unless you're specifically in the Hawaiian rights class which enrollment is usually no more than 20 students or so. Plus, there are no cases in our text/casebook involving Hawaiians in regards to U.S. constitutional law. JVD led our class in the direction that the annexation of Hawaii, because it was not done by the appropriate procedures under both international law and U.S. Federal Law, was not valid. He employs the Socratic method, so, when I say he "led our class" to a particular understanding, what I mean is that he asked the necessary questions in such a way that we reach that understanding, not by him providing us the answers, but rather by him asking us questions. It was awesome. He provided a slide show on Hawaiian history as part of the discussion. There's one particular part with his history that I disagree with and while the rest of my classmates were taking notes on his presentation, I was typing away on my keyboard, writing an e-mail to my classmates, explaining my disagreement with JVD's portrayal of history. The disagreement is on Kamehameha V (Lot Kapuaiwa) and his political intentions as the Sovereign Monarch of the Hawaiian Kingdom during his reign. JVD contends, as most other Hawaiian history scholars do also, that Kamehameha V sought to increase his own political power as the Monarch. I, and few others believe Kamehameha V actually sought to give more political power to the citizens of the Hawaiian Kingdom by limiting the power of the Monarch. The basis for our position rests in the actions of Kamehameha V himself. "I just wanted to e-mail you guys and complement yesterday's Constitutional Law lecture in regards to Hawaiian Kingdom history. By no means is this e-mail intended to replace yesterday's lecture. Instead what I would prefer to do is provide you with some information that wasn't part of yesterday's lecture that I think is important to know in regards to Hawaiian Kingdom history. Please remember that Prof. Van Dyke said we will be re-visiting Hawaiian issues during the semester. A widely held understanding among many people here in Hawaii, both in the Hawaiian community and non-Hawaiian communities, is that Kamehameha V Lot Kapuaiwa, sought to increase his political power as Monarch because he was dis-satisfied with the decrease of political power. Many scholars have written papers, articles and books stating this. I disagree. If you will give me the pleasure of taking a few minutes of your time, I'll share with you why I disagree. I am convinced that after reading this, you too will disagree as well. First, it is important to understand how Lot Kapuaiwa came to be Kamehameha V. Most people consider Kamehameha IV (Kamehameha V's younger brother) to have been the monarch who immediately preceded him in office. This would not be entirely accurate. Kamehameha IV was indeed "a" Monarch who preceded Kamehameha V, but not "the" Monarch who immediately preceded him. No successor to the Hawaiian throne was named by Kamehameha IV. From the time of Kamehameha II through Kamehameha V, the position of Kuhina Nui (Premier) was crucial to the Kingdom in that, in the death of the Monarch, the Kuhina Nui was responsible for the Kingdom. Essentially, the Kuhina Nui was the "next in command" to the Kingdom under the Monarch. At the time of Kamehameha IV's death, the Kuhina Nui was Victoria Kamamalu. The Hawaiian Kingdom Constitution of 1852, Sec. 2 Article 47 reads, [w]henever the throne shall become vacant by reason of the King's death, . . . the Kuhina Nui, . . . shall, . . . perform all the duties incumbent on the King, and shall have and exercise all the powers, which by this Constitution are vested in the King. As a result of and in accordance with this constitutional provision, Kamamalu ascended to the rank of Monarch. Upon ascending to this role, she immediately named her brother, Lot Kapuaiwa, to become Monarch. The next day, Lot Kapuaiwa, became Kamehameha V. Victoria Kamamalu was literally a "Queen for a Day." Now, upon being named the Sovereign of the Kingdom, Article 94 of the 1852 Constitution provided, The King, after approving this Constitution, shall take the following oath: 'I solemnly Swear, in the presence of Almighty God, to maintain the Constitution of the Kingdom whole and inviolate, and to govern in conformity with that and and the laws.' Looking at this provision, a reasonable inference to be drawn from it is, that the Monarch must swear to maintain the Constitution AFTER he approves it. Kamehameha V interpreted this important provision to mean that the Monarch has the complete power to change the Constitution if he disapproves of it. As Prof. Van Dyke provided in his presentation, Kamehameha V promulgated the 1864 Constitution on his own. The interpretation of the Constitutional provision in 1852 was that the Monarch had the authority to abandon a Constitution, under the constitutional provision, if s/he was in disagreement with it and then create another Constitution or modify the existing one that s/he would approve of. Understanding this provision, we can only conclude that the 1852 Constitution gave a high level of power to the Monarch because it allowed the Monarch to make Constitutional amendments without the consent of neither the House of Representatives nor the House of Nobles. Kamehameha V, did not approve of the 1852 Constitution, specifically articles 45, and 94. Kamehameha V refused to take an oath to the 1852 Constitution. Article 94 of the Constitution, in effect, allowed him to do so. He disagreed with it because he believed that every Monarch should be required to take the oath whether they approved of it or not. He also did not believe Article 45 was good for the Kingdom. Article 45 of the 1852 Constitution reads as follows: All important business for the Kingdom which the King chooses to transact in person, he may do, but not without the approbation of the Kuhina Nui. The King and Kuhina Nui shall have a negative on each other¹s public acts. The Kuhina Nui who appointed him as Monarch was his own sister. This clearly was a conflict of interest. The Hawaiian Kingdom Legislature was called to session to deal with these issues of the Constitution. A collective effort involving the House of Nobles, House of Representatives and the Monarch to promulgate a constitution that the King would approve of (as required by the 1852 Constitution) was attempted but eventually hit a stalemate. Under Article 94 of the 1852 Constitution, Kamehameha V had the authority to promulgate a Constitution without the consent of the Legislative Assembly. So far, what we have here is a strong Monarchical power to alter the constitution that derives itself from the 1852 Constitution (Article 94) and a Monarch who was appointed by his sister who was the Kuhina Nui or "Premier" of the Hawaiian Kingdom. Additionally, another provision (Article 45) of the 1852 Constitution permitted the Monarch to make business transactions for the Kingdom with only the authorization of the Kuhina Nui. As we can see, there was a high degree of political power possessed by the Monarch. If we are to assume, as many scholars write, that Kamehameha V sought to increase his power as Monarch, we must then ask, why is it that when he promulgated the 1864 Constitution did he 1.) terminate the position of the Kuhina Nui, 2.) omit the Constitutional provision (Article 94) requiring the Monarch to approve of the Constitution prior to swearing by it, and 3.) omit the Constitutional provision (Article 45) requiring only the approval of the Kuhina nui? These were three key Constitutional provisions that gave great power to the Monarch, yet Kamehameha V did not maintain these provisions in his promulgated Constitution. Kamehameha V, artfully used what he considered to be flaws (Articles 45 and 94) in the existing 1852 Constitution to create the Constitution of 1864 without those same flaws and giving more political power to both the House of Nobles and the House of Representatives. Article 24 of Kamehameha V's 1864 Constitution states, His Majesty Kamehameha V, will, and His Successors upon coming to the Throne, shall take the following oath: The only conclusion to be drawn by this is that Kamehameha V was not trying to increase his monarchical power but was actually doing the opposite; securing political power to the people." How much more democratic could you get in a 19th century kingdom? It's obvious, Kamehameha V used his own authority as provided in Article 94 of the 1852 Constitution to abolish that high degree of authority. He used the loophole of that constitution to get rid of that same loophole. Nothing short of being impressive. Post a comment in response: |
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