U.S. annexation of
Hawaii was legalConstitution allows Congress
By Richard C. Keller
to acquire new territory in
whatever way it wishes
and Clarence J. RandolphThere can be little doubt that an injustice was done to the native rulers of Hawaii in 1893 when the monarchy toppled and the United States gained possession of the islands. It appears that powerful economic and religious interests overthrew a government that did not give them a free hand, so they then sought protection from the more powerful United States.
But it must not be forgotten that other nations also had their eyes on Hawaii. The Hawaii annexation in 1898 came near the end of an era when a number of nations, including our own, were expanding their territorial holdings in the Pacific. If not annexed by the United States, Hawaii may have come under the domination of Germany, Japan or Great Britain.
There is, however, a grievous error in a Star-Bulletin article headlined, "Debate over U.S. acquisition," in the paper's Annexation Centennial edition. It stated that the only way the U.S. Constitution allows the government to acquire territory is by treaty or war.
There is absolutely nothing in the Constitution concerning the acquisition of territory by this country.
That was the problem President Thomas Jefferson had when he was suddenly given the opportunity to buy the Territory of Louisiana. Since the Constitution did not cover the matter, and Jefferson saw himself as a strict constructionist, he favored a constitutional amendment to permit the purchase.
But his advisers talked him out of that idea, and Jefferson became a "loose" constructionist and bought Louisiana.
So, with no guidance from the Constitution, there are really no restrictions on how the United States acquires territory. A treaty, war or even a joint resolution of Congress are equally permissible.
The joint resolution of 1898 was quite different, however, from the one applying to Texas passed by Congress on March 1, 1845. The latter resolution did not annex Texas; it merely invited Texas to be annexed, a process which was completed on Dec. 29, 1845.
The 1898 joint resolution did annex Hawaii, after the Hawaiian government met certain conditions.
By 1898, the Hawaiian monarchy had been overthrown, however illegally, and a republic established. Queen Liliuokalani, under pressure, had abdicated and taken an oath to support the Republic of Hawaii.
The queen, of course, had not given
her permission for a revolution to overthrow her, but then governments in power rarely do.
While we have not seen any relevant documents, there must have been some agreements made between the U.S. government and the Republic of Hawaii to carry out the joint resolution of Congress.
Since Congress is a free agent under the Constitution in the acquisition of territory, in this matter annexation came about when one independent nation made an agreement with another.
For Hawaiians the problem arose when their government was overthrown by one which favored annexation to the United States. From that point on, annexation was a straight-forward arrangement between two nations.
We doubt that international law applies in the matter. In the 1890s it consisted, if it existed at all, of treaties and agreements between nations, plus a strong moral sense in the minds of some people.
No international organization, e.g. the United Nations, was on the scene. If a treaty was broken, no entity was there to castigate or punish the offender. Sheer national power prevailed.
For example, when Great Britain decided to suppress the slave trade in the early 19th century, its right to do so stemmed from some agreements it had made with other nations but primarily from the power of the British navy. That is really what international law was at that time.
In our times, there is a tendency on the part of some individuals, including certain law professors, to try to apply what has come to be called international law in the late 20th century to situations which occurred a century or more ago.
If international law were retroactive, imagine the consequences. The U.S. would have to return most of its land to the American Indians; France would probably have had no right to sell Louisiana to us; Mexico could now reclaim California, Texas and the area in between. And if you keep going further back in time, the changes to be made are almost endless and chaotic.
While we, former professors of constitutional history and law, sympathize with President Grover Cleveland's opposition to annexation, there was nothing in the Constitution or international law to legally prevent it.
The question of Hawaiian independence or secession has been raised in some quarters. We would remind those who suggest it of the U.S. Supreme Court decision in Texas vs. White (1869), in which the court called the United States "an indestructible Union composed of indestructible States."
Perhaps, in a lighter vein, it is appropriate to quote the senator who, speaking then of the Panama Canal, said, "We stole it fair and square." That could well apply to Hawaii, too.
Richard C. Keller is professor of history, emeritus, and
Clarence J. Randolph is professor of political science, emeritus,
at Millersville University in Pennsylvania.