In the previous post I stated I would address in further detail the various arguments of Hawaiian separatists. One persistent claim by Professor Williamson Chang (of the UH William S. Richardson School of Law) is that Hawaii was never “legally” or “lawfully” annexed. He bases this claim on the assertion that it is “impossible for one sovereign and independent nation [the United States] to acquire the territory of another sovereign and independent nation [via joint-resolution].” Indeed, Chang claimed in this Civil Beat Article that the late Supreme Court Justice Antonin Scalia “fails the Constitutionality test” because Justice Scalia doesn’t agree with Professor Chang’s interpretation of the document (interpreting this document was his sole duty until the day he died). Chang states:
“He [Supreme Court Justice Scalia] was wrong on both points.
First, a joint resolution is merely a law, an act of Congress. It has no power to acquire the territory of a foreign, sovereign state. If such a thing were possible, Hawaii itself could have, by an act of its Legislature, acquired the United States.”
Hawaii could, in principle, acquire the United States through an act of the legislature, but like all laws passed by any government on this planet, compliance would mostly be determined by the governments ability to enforce the law. In the case of the Hawaiian Kingdom, there was basically zero capacity to enforce such a law, which is why we could claim to annex California all we want — but could never enforce that claim (as an example, the Republic of China claimed all of mainland China for decades, but never had the ability to enforce that claim as that regime was overthrown and kicked out). The United States government on the other hand, does indeed have the ability to enforce it’s territorial claim over Hawaii, which is exactly why Hawaii was annexed via joint resolution.
This is a recurring debate that I’ve been having with many Hawaiian separatists about the difference between legal theories and political realities. Being a skeptic and promoter of science, I naturally gravitate toward empiricism, facts, and evidence over wild theories that have no basis in reality. The truth of the matter is that if it were “impossible” as Professor Chang suggests, then it couldn’t have happened. But it did happen. I guess the United States is capable of doing the impossible!
Moving back to legal theory land, though Article 4 Section 3 of the US Constitution does specifically state how new States are to admitted, it is silent on the question of acquiring new territories. Williamson Chang interprets this silence of the Constitution to be undeniable proof that his legal theory is correct. This might make sense if he were a strict constructionist like Scalia, but something tells me that he isn’t.
Instead, he bases his claim on the raucous debate of the time between imperialists and anti-imperialists that erupted onto the Senate floor. He quotes Senator William V. Allen of Nebraska and others who believed that an act of Congress could not acquire a foreign nation. But the opinion of some senators who lost the debate does not constitute proof that your interpretation is the correct one. Did Williamson Chang even bother to address the rebuttals by the pro-annexation senators? They specifically cited the annexation of the internationally recognized Republic of Texas via joint resolution as a precedent. I wonder why that wasn’t included in his Civil Beat article?
While a lively debate is great for any nation or society in general, the mere existence of a debate does not somehow imply greater merit to your argument. The only thing Chang has demonstrated is that some senators at the time shared his view on the annexation of Hawaii, while the majority did not. Indeed, they were right that this would set a precedent for imperialism and expansion of the powers of Congress and government in general. But that is no different than the debates before, during, and after the New Deal era (Wickard v. Filburn) or even during the Civil Rights Movement (Heart of Atlanta). Whether or not annexation via joint resolution is good or bad for the country, the constitution, society, traditions, or southern sensibilities, is totally irrelevant to the question of whether or not it is unconstitutional for Congress to annex another nation via joint resolution.
The truth of the matter is that the Constitution does not specifically prohibit Congress from “acquiring” or “annexing” new territory into the United States via joint-resolution, just like it doesn’t say anything about Obamacare or the PGA tour (both questions decided by the Supreme Court). Congress simply asserted this power and it went unchallenged by the people, the states, and the other branches. The rest is history. Could it have been done differently? Should it have been done differently? Sure, but it wasn’t. It was done in exactly the way that it was done and that seems to be enough for the vast majority of Hawaii’s inhabitants who don’t look to abstract legal theories when deciding which system will best provide for themselves and their families.
To recap: The United States may in fact annex territory via joint-resolution for 2 reasons:
1) The Constitution does not specifically say that Congress cannot do this, just like it doesn’t say Congress cannot make marijuana illegal, or provide universal health care, or fight pointless wars in the Middle East. Congress and the Court have interpreted the Constitution in such a way that Congress can basically do whatever it is not specifically prohibited by the Constitution from doing.
2) The United States has the physical capacity to enforce their claims over Hawaii being the 50th State. You do not have the physical capacity to declare Hawaii a sovereign and independent nation. That’s just the truth, and the bottom line.
By the way, even if we were to assume that Williamson Chang were correct about Hawaii never being “lawfully” annexed by the United States, the Statehood vote makes that point moot anyway. Texas v. White clearly states that once States join the Union they may never leave, “except through revolution or consent.”
“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
-Chief Justice Salmon Chase, Opinion of the Court, Texas v. White
Remember, the Constitution does not specifically prohibit States from seceding. That question was decided by a war, and the victors merely asserted the power (which is not actually in the Constitution) to prevent states from seceding. If the people of Iraq or Afghanistan voted to become a State of the Union, and Congress agreed, Iraq’s sovereignty and independence could indeed be extinguished and they would join the United States. It doesn’t matter that the previous Ba’athist regime under Saddam Hussein was “unlawfully” or “illegally” (aggressive war is illegal under the Nuremberg Doctrine) overthrown. It wouldn’t even matter if Iraq were “illegally” or “unlawfully” annexed via joint-resolution by the United States Congress. Because once the Iraqi people drafted up a constitution guaranteeing a republican form of government, and the United States accepted this proposal for admission, Iraq would become the 51st state. Everything that happened prior to that would be completely irrelevant as far as the US Constitution is concerned.
Thus it happened. However Hawaii’s residents came to vote for statehood (whether legitimate or not), it doesn’t matter because that vote did take place and Hawaii became the 50th state.
SOVEREIGNTY IS A POLITICAL QUESTION, NOT A LEGAL ARGUMENT