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Unserious judges subvert the Constitution

The Hawaiian Supreme Court cites “the Aloha Spirit” in a ridiculous ruling


The Hawaii Supreme Court building in Honolulu Jewhyte/Getty Images

Unserious judges subvert the Constitution
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Last week, American politics seemed darkly comedic, bordering on the tragically farcical. There were plenty of national headlines to make that point, but add to that list the Hawaiian Supreme Court decision last Wednesday in Hawaii v. Wilson. In this case, Hawaii’s highest judicial body upheld certain state gun regulations. By itself, that isn’t a stunning development. But in justifying this decision, the court did some strange things.

For one, it openly rejected how the U.S. Supreme Court has interpreted the Second Amendment. SCOTUS precedents say that amendment protects an individual right to possess and carry firearms. The Hawaiian court declared it will interpret the provision as only securing a state’s right to arm its militia.

For another, the state judges justified their rejection of Supreme Court precedent by appealing to what they called, “the Aloha Spirit.” The opinion stated that “In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation.” In fact, in making judicial decisions, the court “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.’” It is this “spirit” which “clashes” with SCOTUS’s view of the U.S. Constitution.

In legal matters as well as in spiritual, beware of deceitful spirits. First, the “Spirit of Aloha” seemingly has deceived the Hawaiian judges regarding their proper constitutional role. State courts cannot reject SCOTUS precedent on matters of federal law. Their attempt to do so violated two constitutional mandates. First, the Supremacy Clause of Article VI says that the federal law, especially the Constitution, is the “supreme Law of the Land.” Thus, any contradicting state laws must give way. This case involved state law and the Second Amendment. If the state law violated that amendment, then the latter should be obeyed, not the former.

Second, principles of federalism hold that the law at issue receives its definitive judicial interpretation from the government that made it. Thus, state courts give the binding judicial opinions on issues stemming only from state law. The same goes for national judiciaries for purely federal matters. But when a case involves both, the highest federal court determines the binding precedent.

Therefore, the “spirit-led” Hawaii Supreme Court can conclude, as it did, that its own state constitution does not protect the same rights as the national one. However, they cannot place their state constitution above the U.S. Constitution, nor privilege their interpretation of it over SCOTUS’s precedent.

The court, in exhorting contemporary society to free itself from the American founding, in effect frees the judges from the rule of law.

Second, the Hawaiian Court has followed a false spirit in how it approached interpreting the Second Amendment. The opinion offered a cartoonish caricature of originalism, bashing its ability to accurately uncover a text’s intended meaning and arguing such meaning should not control a court anyway. The judges asserted that, “As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.” Times have changed and judicial interpretation of the Constitution should change with it.

This critique of originalism falsely treats that approach as incapable of addressing technological changes. The Second Amendment protects the general bearing of arms, not the specific carrying of muzzle-loaders. Thus, the text and its history clearly establish a right adaptable to advances in weaponry.

Worse, the court, in exhorting contemporary society to free itself from the American founding, in effect frees the judges from the rule of law. For laws to rule, government officials and citizens must obey them. To obey them requires knowing what they demand. But how do we obtain that knowledge without consulting the law’s meaning as understood by its makers? How do we not obey that historical meaning as the law’s true interpretation once it has been ascertained? To do otherwise is to manipulate the law to fit one’s own preferences, not submit to its rule as our system demands. It is the rule of man under the guise of the rule of law.

Judges in particular should know better. In Federalist 78, Alexander Hamilton defined judicial power as necessitating the separation of a court’s judgment from its will. Lawmakers legitimately act on their will, making it into binding law. Judges, when acting rightly, do no such thing. Instead, they use their judgment, meaning their reasoning abilities, to apply the will of another – the legislator – to resolve the case before them.

Strangely, the strongest part of the Hawaiian opinion came when it scuttled its own criticism. Its most serious arguments sought to rebut the Supreme Court’s Second Amendment precedents with its own textual and historical analysis. That it then denigrated the effectiveness of this approach only adds to the opinion’s oddities.

We indeed live in serious times populated by unserious public actors. Issues surrounding gun rights and safety are serious. The Hawaiian Supreme Court is not. Let it forsake its false “spirit.” Let it no longer reside with such a strange “life force.” There is a better, more serious way, one found in the Constitution and its manifestation of the rule of law.


Adam M. Carrington

Adam M. Carrington is an associate professor of politics at Hillsdale College, where he holds the William and Patricia LaMothe Chair in the U.S. Constitution. His book on the jurisprudence of Supreme Court Justice Stephen Field was published by Lexington Books in 2017. In addition to scholarly publications, his writing has appeared in The Wall Street Journal, The Washington Examiner, and National Review.


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