Montana Lawyer December 2024/January 2025

PRESIDENT’S MESSAGE The Importance of the Aloha Spirit in Preserving Democracy

Where true human nature lies along the spectrum from the Aloha Spirit to Machiavelli’s much dimmer view will never be fully resolved, but we can all agree on certain aspirational prin ciples, many of which are reflected in the U.S. Constitution, as well as the Montana Constitution. The preamble to the U.S. Constitution speaks of (a) forming a more perfect union, (b) establish ing justice, (c) ensuring domestic tranquility, (d) providing for the common defense, (e) promoting the general welfare, and (f) securing the blessings of liberty to ourselves and our prosperity. The preamble to the Montana Constitution men tions a desire (a) to improve the quality of life and equality of opportunity and (b) to secure the blessings of liberty for this and future generations. Regardless of political persuasion, it is hard to find fault with these goals. The question is which form of government—a democracy or an autocracy— will best achieve them. First, let’s define these terms. An autocracy is a form of government in which power “is concen trated around one individual with limited or no checks and balances on that person’s authority.” 8 In a democracy, by contract, governing authority is granted “to the people or to governing officials through free elections.” 9 According to some, democracies are slow and chaotic, and autocra cies are fast and coordinated. 10 After visiting the fledging United States of America in 1831-32, Alexis de Tocqueville observed two risks associ ated with a democracy; the first is the tendency to degenerate into a “soft despotism,” and the second is the tyranny of the majority. 11 The separation of powers—as reflected in the U.S. Constitution— was the founding fathers’ attempt to address the risks identified by de Tocqueville. The benefits of a democracy are obvious to many, but they bear repeating here. According to the U.S. Agency for International Development, democracies “are more peaceful, experience higher economic growth and lower poverty rates, protect

In 1986, the Hawaiian legislature enacted the Aloha Spirit law, which requires judges and public officials to “give consideration to the Aloha Spirit” when fulfilling their official duties. The “Aloha Spirit” is defined as “the coordination of mind and heart within each person,” and the statute encour ages “[e]ach person [to] think and emote good feelings to others.” Hawaii Revised Statues § 5-7.5. Most people recognize “aloha” as a greeting, but it is also a reflection of Hawaiian values. The spirit of aloha encompasses peace, kindness, compassion and responsibility to future generations. 1 Contrast the Aloha Spirit with Machiavelli’s view of human nature, in which humans are “self ish by nature and opportunists.” Machiavelli 2 believed that human beings “tend to fulfil their self-interest” and that “men want protection but lack the strength to protect themselves.” As a result, “they rely on the state to seek security, and the government provides protection from internal as well [as] external conflicts and rivals.” 3 Machiavelli’s sentiments are echoed in the Federalist Papers. As summarized by at least one commentator, “Human nature does not prevent men from leading government, so long as the government is set up in a way that acknowl edges reality and constrains the worst part of an individual.” 4 In Federalist Essay No. 6, written by Alexander Hamilton in 1787, in advocating for a federal government, Hamilton adopts a view of human nature in which individuals’ desire for power and refusal to compromise (which Hamilton viewed as the base state of human nature) is countered by their desire for equality and safety. 5 In Federalist Essay No. 51, published in 1788, James Madison recognized that “people who run government can be corrupted and can manipulate and take advantage of the power that has been bestowed upon them.” 6 According to Madison, “If men were angels, no government would be necessary.” 7

Toni Tease is a regis tered patent attorney and a solo practitioner who specializes in intel lectual property law. Her office is located in Billings, Montana, and her website is at www. teaselaw.com.

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