PART 1 OF SERIES
Hawaii debates need for constitution fixes
By Derrick DePledge
Advertiser Government Writer
By Derrick DePledge
Voters get a once-in-a-decade chance in November to call for a Constitutional Convention, a right the framers of the state constitution felt was reasonable to provide a workable means of amending the state's governing document.
Delegates who drafted the constitution in 1950 did not want people to amend the constitution directly through initiative and referendum. Yet they were uneasy about leaving all the power with the Legislature, since many had seen firsthand how sluggish the Territorial Legislature could be on difficult issues.
Their solution: The Legislature could place amendments before voters or call for a Constitutional Convention. But if the Legislature did not call for a convention within a decade, the lieutenant governor would have the authority to put the question before voters.
"It seems to me that's a reasonable provision," C. Nils Tavares, a former territorial attorney general who would later become a federal judge, told fellow delegates. "And if you just leave it up to the Legislature as it has been said, there is a possibility that the Legislature may not act for 20, 30 or 40 years."
Delegates were prophetic.
The Legislature has called for a Constitutional Convention only once since statehood — which led to the 1968 convention — and only after a federal court ordered lawmakers to put the question on the ballot to address the drawing of state House and Senate districts under the "one person, one vote" principle.
It has been up to voters to call for conventions and, in what may have been a surprise to some of those delegates back in 1950, voters have not officially backed a convention since 1978.
This year, a presidential election featuring Hawai'i-born U.S. Sen. Barack Obama, three mayoral runoffs and a ballot question over a $3.7 billion Honolulu mass transit project have overshadowed debate over a Constitutional Convention.
"I don't think the timing is particularly good," said John Hart, a communication professor at Hawai'i Pacific University. "Between someone from Hawai'i running for president and the rail issue coming to a head, I think it's easy to see why something more abstract and theoretical like a ConCon could get pushed to the side."
Voters will only be asked whether a convention should be called. If a majority of all votes cast — including blank and over votes — support a convention, the state Legislature would later determine the number of delegates, when those delegates would be elected, and when a convention would be held. Most analysts believe a convention could be held and any new amendments ratified by voters in 2010.
The Legislative Reference Bureau has estimated that a convention could cost between $6.4 million and $41.7 million. A task force set up by Lt. Gov. James "Duke" Aiona estimated a convention would cost less than $10 million.
No single issue or set of issues is behind a convention this year, so the discussion has been mostly philosophical.
Many people who want a convention believe three decades is too long to go without a comprehensive review of the constitution and doubt the Democratic-controlled Legislature is capable of making structural changes that could shake the status quo.
Many who are opposed believe calling for a convention without specific issues leaves the constitution vulnerable to special interests and unnecessarily places existing rights at risk.
State Attorney General Mark Bennett said he believes delegates in 1950 would have been surprised the state would go more than 30 years without a review.
"To me, the issue now is, can we do better?" he said. "Can we do substantially better? And I think we can."
Bennett said a convention would provide a forum outside the Legislature for people to debate issues such as public education, criminal justice and fiscal management. Specifically, he pointed to whether to break up the state Department of Education into school districts governed by local school boards, the level of independence for the University of Hawai'i, changes to evidence rules in criminal trials, and a balanced budget requirement.
Bennett said all four county prosecutors and police chiefs support a convention to discuss public safety issues. He also said issues such as term limits for state lawmakers, the relationship between the state and the counties, and land use management could be subjects for review.
"When you're dealing with questions fundamental to the way we govern ourselves," he said, "I think a lot of issues ought to go before voters."
Unlike the Founding Fathers, who deliberately set the bar high for amending the U.S. Constitution, delegates in 1950 wanted a revision process that was practical. The state constitution, many delegates believed, should not be easily amended but the amendment process should also not be so difficult as to be practically impossible.
Anne Feder Lee, the author of a reference guide to the state constitution, believes a convention should only be called to fix clearly identified flaws.
She said there has been no detailed analysis of potential amendments and, instead, worthwhile but largely superficial arguments about how a convention would bring government closer to the people.
"I think that the people who are supporting a Constitutional Convention have the burden of telling us what kind of language they are looking for. I would like some specifics," she said. "So when people say, 'We need to change the education system.' I'd like to see a proposed constitutional amendment before I will actually vote."
"It's easy to say, 'Well, I think they should address subject X,' " said Lee, who has appeared in television advertisements for the Hawai'i Alliance, a group opposed to a convention led by former governor George Ariyoshi and financed largely by donations from labor interests. "But how do they want to address it, specifically? That comes back to the issue that the convention may not make the change in the way that the people want it to be made."
State lawmakers have the power to put constitutional amendments on the ballot. In November, for instance, voters will be asked whether to lower the age requirement for governor and lieutenant governor from 30 to 25.
But Bennett and others who want a convention do not believe lawmakers, who have a vested interest in preserving a system they control, will act on issues such as term limits or initiative and referendum, making a convention the only venue where those issues could be heard. Any amendments that arise from a convention would have to be ratified by voters, which supporters argue is a safety lock on rash decisions.
"Democracy works, certainly," Bennett said of the legislative process, "but the ConCon is democracy at a fundamental level."
Lee and many who oppose a convention, however, ask why fundamental rights should be placed in jeopardy without identifying specific reasons to change the constitution. During a typical legislative session, it is unlikely for more than a few amendments to be actively considered. But during a convention, there would be the temptation to debate dozens.
Depending on when a convention is held, the amendments could be influenced by the political and social climates of the times or by the most well-financed special interests.
How would the right to collective bargaining fare during a recession? Would the state Office of Hawaiian Affairs be sacrificed for the ideal of equality? Would the right to privacy be questioned after a terrorist scare?
Would a few controversial issues, such as same-sex marriage or legalizing gambling, drown out everything else?
The state's past four chief executives are split on whether to call a Constitutional Convention. Gov. Linda Lingle and former governor John Waihee favor a convention, while Ariyoshi and former governor Ben Cayetano are opposed.
The Democratic Party of Hawai'i, the state's majority party, has opposed a Constitutional Convention, while the Hawai'i Republican Party has endorsed the idea.
"Citizens should take the chance to participate in reviewing the most basic legal document in our state," said Waihee, who was a delegate to the 1978 convention. "It not only sets up the frame and structure of government, it also sets up the policies as well.
"I think that these types of opportunities are important for our democracy."
But Waihee said he understands why people who have worked hard to amend the constitution, such as those in the labor movement and the Native Hawaiian community, would not want those rights jeopardized.
"I don't think that that will happen, and maybe I have more faith in the process than they may, but I can fully appreciate why they would be concerned," he said.
Cayetano said he cannot think of anything that could be accomplished at a convention that could not be achieved through the legislative process. He said there are times when a convention might be necessary, but not now.
"If groups of citizens want to amend the constitution they should band together and lobby the Legislature for proposed constitutional amendments to be placed on the ballot in the next election," Cayetano said in an e-mail. "If you listen to the arguments of the pro-ConCon people, many of them are dissatisfied because they were unable to get certain issues approved by the Legislature.
"Well, if they are unhappy with their legislators, they should vote them out of office."
Reach Derrick DePledge at email@example.com.