Many voters in Hawaii (the ones who actually vote, anyway) are becoming cognizant of the fact that there are two statewide ballot measures on the Nov. 6 ballot.
One will ask us if we want to hold a constitutional convention, while the other asks if we want to amend the Hawaii Constitution to give the Legislature the authority to levy a surcharge on investment property to support K-12 education.
Civil Beat has devoted a lot of articles and commentary to the nuts and bolts and pros and cons of the two questions, with more to come in the weeks ahead. So I’ll not address all that here.
But I will consider a related matter: How many of us have actually read the Hawaii Constitution? And what does it say?
It’s important, as the ConAm question will have major implications for state schools and teachers, including creating a precedence of amending the constitution (or not) for issues like education. Education is the subject of the constitution’s Article X, but it doesn’t offer much guidance in terms of how to pay for it.
As for a ConCon, should voters choose to hold one, the possible amendments — such as establishing a citizen initiative process, eliminating “gut and replace” legislation, ending Sunshine Law exemptions for legislators, granting counties greater home rule, giving the University of Hawaii greater autonomy, altering the Office of Hawaiian Affairs, legalizing recreational marijuana and much more — could dramatically reshape our governance and society.
Count me among those who had not read the constitution, although I have consulted many sections for my reporting. I’ve since read the entire document and a few things stand out for me, especially as we once again consider amending it.
Topmost is that, while a great deal of the constitution is dedicated to standard governance (core laws and principles, legislative and executive powers, the courts, representation, spending and taxation and so forth), ours is a fairly Hawaii-focused document. It starts with these words in the preamble:
We, the people of Hawaii, grateful for Divine Guidance, and mindful of our Hawaiian heritage and uniqueness as an island State, dedicate our efforts to fulfill the philosophy decreed by the Hawaii State motto, “Ua mau ke ea o ka aina i ka pono.”
I’m not sure what or who “Divine Guidance” refers to, but I guess I can live with the ambiguity. The prose is also sometimes a bit purply, as in this passage: “We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire.”
And our constitution is sometimes high-minded (italics mine): “We reaffirm our belief in a government of the people, by the people and for the people, and with an understanding and compassionate heart toward all the peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii.”
What follows the preamble are 18 articles.
Article I is our bill of rights, and it contains 25 sections in all. Section 3 includes this language: “Equality of rights under the law shall not be denied or abridged by the State on account of sex.”
Put another way, this is Hawaii’s equal rights amendment. We were the first state to ratify one, way back in 1972. Thirteen states, most of them in the South, still do not have an ERA. Nor does the U.S. Constitution.
Our bill of rights also lists the word “privacy” several times, as compared with the U.S. Bill of Rights, which does not use the word. Only 10 states have “explicit provisions relating to a right to privacy,” according to the National Conference of State Legislatures. They mirror the Fourth Amendment on search and seizure, NCSL explains.
To that end, Article I, sections 6 and 7 of the Hawaii Constitution read:
The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated.
Both sections came out of the 1978 Constitutional Convention.
Here’s another unusual feature of the state constitution: In 1998, Hawaii voters gave the Legislature the power to reserve marriage to opposite-sex couples (Article 1, section 23). The Legislature soon followed suit, essentially writing discrimination into our sacred text.
In 2013, the Legislature finally made same-sex marriage legal through statute. But the Hawaii Constitution was not amended. The U.S. Supreme Court made same-sex marriage the law of the land in 2014.
There are other surprises in our state constitution.
Article III, section 18 gives the state House and Senate the power to imprison for up to 30 days any nonmember guilty of “disrespect” of a chamber, or “disorderly or contemptuous behavior,” or one who threatens harm. The nonmember is allowed the opportunity to provide a defense.
I do recall at least one disruption at the State Capitol where a demonstrator was forcibly removed. It was Mitch Kahle of Hawaii Citizens for the Separation of State and Church, who was later acquitted for objecting to a prayer being said at the beginning of a Senate session in 2010.
With all the talk of impeachment at the federal level, it’s worth noting that our Article III, section 19 allows for impeachment of the governor and lieutenant governor “and any appointive officer for whose removal the consent of the Senate is required.”
The House has the sole power of impeachment while the Senate could try impeachments, though two-thirds concurrence is required.
And, with all the news reports on gerrymandering, Hawaii residents might feel comforted by the fact that when reapportionment is considered every 10 years, no district “shall be so drawn as to unduly favor a person or political faction.”
The state constitution also leans green, and definitely toward the indigenous population.
Article XI, section 1 reads, “For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.”
Much of Article XI came out of the ’78 ConCon. As did this: “All public natural resources are held in trust by the State for the benefit of the people.”
David Kimo Frankel, a local attorney specializing in environmental law, said our state constitution includes unique provisions that protect natural resources.
“These provisions are not found in the U.S. Constitution and are absent from most state constitutions,” he said.
Frankel explained that the state constitution also prohibits special legislation regarding public land that benefits a special interest.
“It gives you the right to sue to enforce the state’s environmental laws,” he said. “The state constitution has prevented large landowners from diverting unlimited amount of water from our streams. It required the state to ensure that the military is cleaning up after its training exercises. It protected limu beds on Molokai, a spring on Kauai, kalo loi on Maui and anchialine ponds in Kona.”
Here’s another unique fact: Section 8 says “No nuclear fission power plant shall be constructed or radioactive material disposed of in the State without the prior approval by a two-thirds vote in each house of the legislature.” That does not prevent nuclear-powered submarines from docking at Pearl Harbor, however.
Article XII is devoted to Hawaiian affairs, including the adoption of the Hawaiian Homes Commission Act of Congress in 1920 into state law. It mentions “sugarcane lands” several times, which makes sense at the time it went into effect — statehood in 1959. But of course cane is no longer king.
The creation of the Office of Hawaiian Affairs is found in Article XII, perhaps the most well-known amendment of the ’78 ConCon. So is the granting of lands to the state “for the purpose of a public trust for native Hawaiians and the general public.”
David Callies, a UH Manoa law professor who is an expert on state and local government laws, said that, while the Hawaii Constitution is not especially unique when compared to others, there are aspects that stand out.
“There are not a whole lot of constitutions that protect native rights,” he said. “That’s unusual.”
Some worry that a ConCon could threaten labor union rights.
Collective bargaining for public employment and private employment unions is found in Article XIII. It is the shortest article in the constitution.
Article XIV establishes a code of ethics. It reads in part, “The people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct and that these standards come from the personal integrity of each individual in government.”
Because of the code, which is spelled out in Hawaii Revised Statutes Chapter 84 and Chapter 97, there are limits on gifts, confidential information, uses of official positions, contracts with government agencies, post-employment, financial disclosure and lobbyist registration and restrictions. They apply to all candidates for elective office, and appointed officers and employees.
The State Ethics Code is enforced by the Hawaii State Ethics Commission, which came out of the 1968 ConCon. Some states — including Arizona, Idaho, New Hampshire and the Dakotas — have no ethics commission or have commissions with very limited authority.
Article XVI, section 13 declares, “Insofar as practicable, all governmental writing meant for the public, in whatever language, should be plainly worded, avoiding the use of technical terms.”
That’s admirable, even as the constitution uses some words that are far from plain. Article XV, for example, says the state shall consist of all the islands “together with their appurtenant reefs and territorial and archipelagic waters.” “Appurtenant,” I learned from Google, means “belonging” or “pertinent.”
Lastly, the Hawaii Constitution is the source for allowing itself to be modified. Article XVII includes the provisions for a ConCon and for ConAms.
(Interestingly, a governor cannot veto amendments.)
Peter Adler, a Honolulu mediator who has convened a ConCon Salon, says there have been 72 proposed amendments since 1980, “some ministerial cleanups, some major.” Thirty eight passed, 32 were defeated at the ballot and two were overturned by the Hawaii Supreme Court.
The staff of state Sen. Les Ihara compiled all of the amendments to the constitution over the past 38 years. (The full list is reproduced below.)
They include the solid rejection, in 2014, of a ConAm to increase the retirement age of all judges and justices from 70 to 80. We approved, however, a 2010 ConAm switching the Hawaii Board of Education from an elected to appointed body.
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