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The Honolulu Advertiser
Posted on: Sunday, May 18, 2008

COMMENTARY
Time for a tune-up

By Jon M. Van Dyke

Hawaii news photo - The Honolulu Advertiser

In 1968, Constitutional Convention president Hebden Porteus signed a document proposing 23 amendments to Hawai'i's Constitution. Also pictured are Seichi Hirai, right, and Tadao Beppu, the convention secretary. Another Hawai'i Constitutional Convention was held in 1978, but none in the 30 years since.

Advertiser library photo, 1968

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Hawai'i's voters will be asked on Nov. 4 whether they want to have another Constitutional Convention to examine and propose amendments to our state Constitution. Such a convention would allow our citizens to re-examine the fundamental structure of our state and local governments, could renew and energize our electorate, and might bring forward a new generation of political leaders.

Hawai'i's present Constitution was originally drafted in 1950 by a convention composed of 63 delegates who sought to convince the citizens of the continental United States that Hawai'i was ready for statehood. This document was modeled closely on the U.S. Constitution, and it was ultimately successful in its mission, when Hawai'i was admitted as the 50th state in 1959. This original Constitution created a strong state government, with centralized responsibility for public health, public assistance, public housing and land use. It created the only statewide school system in the country. It gave our governor more power than that of most other states, and it gave only limited "home rule" to the four counties.

The next ConCon in 1968, with 82 delegates, was at McKinley High School. The primary impetus for this gathering was to address the process of reapportioning legislative districts, but the delegates went beyond this mission to establish a commission to set legislative salaries, mandate an annual 60-day legislative session, lengthen the terms of judges, authorize collective bargaining for public employees, strengthen privacy rights for individuals and enhance county home rule slightly. The delegates included such prominent political figures as George Ariyoshi, Nelson Doi, Frank Fasi, Patricia Saiki, and Nadao Yoshinaga.

Our last ConCon was in 1978, with 102 delegates, held in the Old Federal Building. This event is sometimes referred to as a "People's ConCon" because the media and the public strongly discouraged elected officials from running as delegates. In contrast to the 1968 convention when more than half of the delegates were sitting legislators or ex-legislators, only two of the delegates to the 1978 convention were sitting legislators, two others were former legislators, and one was a sitting member of the Honolulu City Council. Many of the young delegates went on to play a major role in Hawai'i's political life, including John Waihee and Jeremy Harris.

This 1978 ConCon was highly productive, imposing a two-consecutive-term limit on the governor and lieutenant governor, expanding the period between primary and general elections, reinstating open primaries, adding a "resign to run" provision, imposing controls on campaign finance and contributions, requiring an annual balanced budget, and giving the counties power over real property taxation. Its amendments created the Judicial Selection Commission, the Intermediate Court of Appeals, the Tax Review Commission, the Council of Revenues, and the Commission on Water Resource Management. It added an explicit right to privacy to the Constitution, as well as a right to a clean and healthful environment.

The convention was particularly active in addressing Native Hawaiian issues. It increased funding for the Department of Hawaiian Homelands, it created the Office of Hawaiian Affairs, it established Hawaiian as an official language of the state (along with English), it mandated Hawaiian language immersion programs, it limited the use of adverse possession to dispossess landowners, and it reaffirmed the protection of traditional and customary Native Hawaiian rights.

We have been implementing and giving meaning to these new constitutional provisions during the past 30 years, and many now feel it is appropriate to take another close look at our Constitution and propose further amendments. Our community and the world are very different now than they were three decades ago, and it may well be time to see whether we might improve our system of governance.

Among the many issues that could be re-examined are:

  • Whether the Board of Education should continue to have statewide responsibility and whether its members should be elected or appointed.

  • Whether the University of Hawai'i should have greater autonomy and whether its regents should have longer terms and should receive compensation for their long hours of service.

  • Whether our Legislature is too large and whether we still need a bicameral Legislature.

  • Whether we should return to electing legislators from multi-member districts.

  • Whether the counties should be given more power and control over revenue sources.

  • Whether the election procedure governing the trustees of the Office of Hawaiian Affairs should be altered (they are now elected statewide rather than from districts, making it more expensive to run).

  • Whether a new political subdivision should be created for Native Hawaiians to give them autonomy and control over their own land and resources.

  • Whether the content of the right to privacy should be clarified.

  • Whether the environmental provisions in the Constitution should be strengthened to protect the unique biodiversity of our Islands for future generations.

  • Whether the right to bear arms should be clarified.

  • Whether the circuit courts and district courts should be combined.

  • Whether judges should be required to retire at age 70.

  • Whether the Judicial Selection Commission should have unreviewable power over the reappointment of judges.

    In a democracy, the people govern, and the people are also in charge of how their government should operate. Periodically examining the way we govern ourselves is healthy, and if the voters decide to have another Constitutional Convention, its delegates may well propose new innovations to allow our government to operate more efficiently and to protect more successfully our sense of community, our individual liberties, and our wonderful island and ocean environment.

    Jon M. Van Dyke is a professor of law at University of Hawai'i- Manoa's William S. Richardson School of Law. He wrote this commentary for The Advertiser.