Jerry Burris
Legislature should do only what it can do

By Jerry Burris
Advertiser Editorial Page Editor

If we can’t make up our own minds, is it fair to expect our legislators to do it for us?

That question forces its way to the surface each legislative session as lawmakers - like moths to a flame - find themselves drawn irresistibly toward issues that probably are beyond their ability to resolve.

You can bet someone at the state Capitol will soon introduce a resolution urging someone, somewhere, to do something about fragile U.S.-Japan relations in the wake of the sinking of the Ehime Maru.

Maybe the parade of legislators who traditionally find their way to Fukuoka might make a detour this year to Shikoku to offer condolences and take in the scenery. It might even do a little good.

But the reality is that there is little the Hawai'i Legislature can do about this, or so many other hot-button issues.

Closer to home, the Legislature is being asked to grapple with contentious, personal and emotional matters such as the sexual age of consent, notification of parents in the case of minors seeking abortion, same-sex reciprocal "benefits" and others.

Now, at one level, this is appropriate. Someone has already passed a law on the age at which a child can legally consent to sex, on abortion and on marriage. So why not tinker with the details?

The short answer is that these are not matters that can be decided by fiat. It takes delicacy and community consensus to make laws in such areas. Lawmakers may help create that consensus but they cannot impose it.

What usually happens is that legislators find themselves drawn into a fight where the battle lines are unclear. That means they offend some without fully satisfying others.

So little is accomplished other than the creation of a distraction from the grittier issues that do demand attention such as education, social welfare, taxes and development.

In the case of contentious social issues, sometimes the best law is no law at all. That was the conclusion reached by deep-thinking legislators and the late Gov. John A. Burns in 1970, when Hawai'i became the first state in the nation to "legalize" abortion.

In fact, Hawai'i did not legalize anything.

What Burns and the others concluded was that abortion was an intensely personal matter in which the state had no sensible role. Burns, a staunch Catholic, was firmly opposed to abortion. But he felt that any law would impose the state into a matter that should be between a woman, her physician and her own moral view of the world.

So with Act 1 of that year, Hawai'i eliminated its laws controlling or regulating abortion, save for some simple language requiring that the procedure be conducted by a physician and that the woman be a resident. In effect, the state got out of the way.

Such thinking, obviously, is not the right solution for every knotty problem. But the plain fact is that laws and regulations sometimes are inadequate to resolve matters of human emotion - particularly when the community itself is divided.

Our Legislature could get a lot more work done if it recognized that fact, concentrating less on the ethereal and more on the possible.

[back to top]