Hawaii's State Constitution:
What Should it Contain?
All governments in the United States are authorized, defined and limited by their constitutions or charters. Constitutions serve several purposes in a society. Because they provide for government's operating under written and relatively fixed rules, they promote stability. They also embody a consensus of society on broad ideals and concepts, such as the principles set forth in bills of rights, checks and balances, citizen participation, representation through free elections, etc.
Constitutions differ according to the inherent powers of the government involved. Our federal government evolved through powers given it by the states. Also, states granted certain powers to local governments. The federal constitution and local charters are grants of power; state constitutions are limitations of power. This distinction is important and helps to explain the history and issues of constitution-making.
There is no binding rule which says what must or must not be included in a constitution. The only formal restrictions on state constitutions are those imposed by the U. S. Constitution and laws and treaties of the federal government. Otherwise the nature and contents of the constitution are determined by those who propose (in this case, the Con Con), and by the voters who approve or reject the proposals. However, just because something can be included in the constitution doesn't mean it should be. State constitutions have been thoroughly studied over the years, and there is much expert opinion on what does and does not make a "good" constitution. Using these resources, the League of Women Voters of Hawaii has prepared this background information and the proposed concurrence on our state constitution.
There are many definitions of a constitution, but for the most part they express similar concepts. Students of government, including statesmen, legal scholars, political scientists, and lay groups such as the League of Women Voters, generally agree that a state constitution should be an enduring document which sets forth the basic structure of state government, assigns powers among its permanent branches, and preserves the fundamental rights of the people. Constitutions are usually considered to be distinct from and superior to ordinary statute law. In 1921, Justice Benjamin Cardoza put it this way: "A constitution states or ought to state not rules for the passing hour but principles for an expanding future."1
Few people try to explain what a constitution should be, without explaining in the same breath what it should not. This is not surprising, for we have far more experience in the United States with state constitutions which do not fit the brief basic model described above, than we do with those that do. A look at history helps to explain why.
The early state constitutions were rather spare documents establishing the framework of government and setting forth general principles, while avoiding detailed provisions and restrictions. Following the Civil War, this began to change. According to one scholar: "The Constitutions which date from the Victorian period are much like the mansions of this time -- massive, rambling, and adorned with gingerbread."2 Distrust of all government institutions, particularly state legislatures, was a key factor in the constitution-making of this era. Constitutions were written incorporating highly specific limitations and requirements, many aimed at curing then-current ills. Special interest groups sought protection for their pet ideas and projects by giving them constitutional status. As times changed, these specific provisions became inadequate or outdated and had to be amended. Furthermore, the specific laws and
enumerations of power granted to government were interpreted by the courts as prohibiting that which was not explicitly authorized in the constitution. This was especially true as government in the twentieth century tried to respond to new social needs in the areas of workmen's protection, public assistance, health and housing. Thus detail bred more detail.3
Most students of government feel that long, detailed constitutions are undesirable. The following passage summarizes the major criticisms:
"Excessive constitutional detail is bad for many reasons. It solidifies the entrenchment of vested interests.
"It makes temporary matters permanent; it deprives state legislatures and local governments of desirable flexibility and diminishes their sense of responsibility. It encourages the search for methods of evading constitutional provisions and this tends to debase our sense of constitutional morality.
"It makes frequent recourse to the amending process inevitable. It hinders action in times of special stress or emergency. It stands in the way of healthy progress. It blurs the distinction between constitutional and statute law to the detriment of both.
"It creates badly written instruments full of obsolete, repetitious, misleading provisions. Above all, it confuses the public, and in fact makes it certain that few will ever bother to read the state constitution."4
There is no widespread opposition to the view that a constitution should deal with fundamentals and leave matters of transitory importance to the legislature. There is an opposing empirical view but it does not offer an alternative concept of the nature of a constitution. It does, however, raise the question "what is fundamental and what is of transitory importance?" No precise definition exists. As has been noted: "All too often 'fundamental' is that which you favor, while 'statutory' is that which your opponent proposes."5
The League of Women Voters of California wrote: "In every age some things are too unsettled, too vulnerable, or too momentous to the people to entrust to the legislative process, which by its very nature is subject to constant pressure." Perception of what is "fundamental" vary from state to state and change over time.
Differences of opinion in this area often reflect differing assumptions about human nature and about the proper role of government. Generally speaking, advocates of the short basic constitution favor an active problem-solving government, with enough flexibility to respond to emerging problems. They believe it is better to give power to the organs of governments, and then seek means to keep public officials honest and responsible, rather than to deny them power.
Others prefer a lesser role for government, feeling that government is best which governs least. They feel that government cannot and should not be trying to solve all problems of society and therefore the constitution should limit the activities of state government; detailed prohibitions and instructions are needed to protect against abuse and to make sure that government actually implements constitutional requirements.6,7 Few of us, however, find ourselves completely consistent in our philosophy; we shift
our stance according to how we perceive particular problems, such as government spending and debt, lack of legislative responsiveness, or standards of conduct.
In the final analysis, a new or revised constitution, in and of itself may offer little to the solution of a state's problems. As on observer noted: 'The nature of the Constitution...is only incidental to whether (the state) has an honest, efficient, principled government. The caliber of the men who guide the state's affairs determines the type of government (we have). The most ideal constitution will be of aid to honest public officials but will have little bearing en the activities of unscrupulous ones. Until each individual voter demonstrates a willingness to accept the never-ending responsibility of selecting trustworthy public servants, public morality, idealism and self-restraint will often he ignored by those who seek to obtain public office."8
- Cardoza, Benjamin, The Nature of the Judicial Process (1921): p. 24.
- Dishman, Robert, State Constitutions: The Shape of the Document (New York: National Municipal League, 1960), p. 1.
- Irvine and Kresky, How to Study a State Constitution (New York: National Municipal League, 1962), p. 4.
- Hamilton, Thomas, "A Constitution's Nature," Honolulu Star-Bulletin, March 14, 1978.
- 'Revising the Constitution: A Liberal Approach," Issues 1978 (Honolulu: 'O Ka Po'e Ke Kumu O Ke Kanawai, 1978), p. 9.
- National Municipal League, Salient Issues of Constitutional Revision (New York: 1961).
- League of Women Voters of Tennessee, Issues in the Tennessee Constitution,
- Thomas, A. J., Jr., and Thomas, Ann Van Wynen, "The Texas Constitution of 1876,"
Texas Law Review, October 1957, p. 918.
Published July 1978
by the League of Women Voters of Hawaii
116 South King Street, Honolulu, Hawaii 96813.
This publication may not be reproduced
without permission from the League of Women Voters of Hawai.
(included with the Summer 1978 Leo Hana)