Posted on: Sunday, November 14, 2004

By Jerry Burris
Advertiser Editorial Editor

If you wanted law enforcement officials who were sincerely concerned about your safety and well-being, you could not do much better than Peter Carlisle and Mark Bennett.

Carlisle, the Honolulu prosecutor and Bennett, the state attorney general, are decent men on a mission.

And that mission, in part, is making our criminal justice system as efficient and victim-friendly as possible.

The two were lead advocates of a quartet of state constitution amendments approved by the voters this month that expanded victim rights over the constitutional and legal objections of the Hawai'i Supreme Court.

(Full disclosure: I am a member of the editorial board of The Advertiser, which opposed the four amendments. So much for the power of the press.)

Perhaps energized by that victory, Bennett and Carlisle tell Advertiser courts writer Ken Kobayashi they are thinking about going back to the voters and into the constitution with another package of amendments.

Two of the amendments deal with so-called "walk and talk" and "knock and talk" techniques, which allow law enforcement to approach individuals or homes where they suspect illegal activities.

These proposals deserve substantive debate.

More troubling, at least to me, is a third idea under consideration which would fundamentally change the way voters amend our constitution.

Today, for an amendment to the constitution to be approved by the voters, it must receive a majority of "yes" votes from everyone who participates in the election. That is, the yes votes must be more than 50 percent of all ballots, including those which are blank or double voted.

This represents a high bar for approval.

Carlisle and Bennett are thinking about an amendment that would say the constitution can be changed when the yes votes outnumber the no votes, with blank and other ballots tossed out.

This, from my perspective, is dangerous. The folks who wrote this provision deliberately set a high standard for changing the constitution. It should not be subject to popular passions or momentary excitements.

As it works now, the constitution cannot be changed unless a majority of people with an opinion want it changed. That makes sense.

And it is not an impossible bar. The four amendments proposed by Carlisle and Bennett managed to get over it this election.

Under the proposed change, a small, passionate minority could easily rewrite the constitution. Imagine an issue that is favored by 10 percent of the electorate, opposed by 5 percent and of little interest to the rest. It would pass.

On issues of law enforcement, Carlisle and Bennett are experts. They should not, however, stake their good reputations and good names on something as fundamental as the way we rewrite our constitution.

Jerry Burris is The Advertiser's editorial page editor.