Constitutional Convention '98
Position Paper on the Question:
Should there be a convention to propose a revision of or amendments to the Constitution?
The members of the League of Women Voters of Hawaii, after careful study and evaluation of information, have reached consensus that a state
constitutional convention in 1998 is neither necessary nor desirable. Along with many members of the public, League members see many issues that might be addressed by a convention. However, our consensus is the arguments for holding one at this time are outweighed by the reasons for not having one.
NO COMPELLING NEED FOR A CON CON NOW
In a speech to Honolulu League members, Dr. Anne Feder Lee, author of The Hawaii State Constitution -- A Reference Guide, contended that there are no "fatal flaws" in our constitution.1 There are no critical shortcomings, she asserted, that result in very serious problems for the governance of our state, and therefore, a Con Con is not needed at this time.
The 1950 constitutional convention was held for a very specific reason -- to write a state constitution that would demonstrate to Congress and the nation that the citizens of the Territory of Hawaii were ready to assume the responsibilities of membership in the union of states. In addition, having a constitution already prepared would hasten the process of organizing the state government once statehood was achieved.
The 1968 convention was necessary to address the serious problem of apportionment of the legislature because of the "one person - one vote" ruling by the U.S. Supreme Court although the delegates did not confine themselves only to that issue.
While there were no compelling legal reasons for holding the 1978 convention, advocates of "good government", including the League of Women Voters, felt that there were many issues that needed review. A 74% approval for the holding of a convention, following publicized support by various community groups and the newspapers, would indicate that there was general consensus that our constitution was in need of revision.
As a result of the '78 convention, two new articles and approximately 40 sections were added to the constitution. Reapportionment and Code of Ethics had been addressed formerly under other articles but were set up as separate articles. A new section added under the Bill of Rights insures privacy for our citizens distinct from that in Section 7 which prohibits unreasonable searches and seizures and invasion of privacy understood to be limited to criminal cases.
Other new sections in the constitution expand on environmental protection and control, campaign finance and contribution controls, limit the governor and lieutenant governor to two consecutive 4-year terms, add a requirement for open committee meetings in the legislature, allow local governments to have power over real property taxation, and created the Office of Hawaiian Affairs. Among other revisions, a newly created judicial selection commission was given an important role in the selection and reappointment of judges, and a new intermediate court of appeals was created.
There has been, so far, no public ground swell of support for a 1998 constitutional convention. Furthermore, some of the '78 amendments and revisions have yet to be fully implemented.
LWV Interviews Indicate Little Support for a Con Con
During our study, the League interviewed over 90 individuals in Hawaii -- government officials, community leaders, members of the academic community, etc. -- to obtain their views on certain articles of the constitution. While many issues were raised as worthy of review, the overwhelming majority felt that a convention was not necessary to address these issues at this time.2
Cost Too High
Holding a Con Con in 1998 would be very costly. We believe that the cost of financing a convention, including the special election to select the delegates, is not warranted at this time particularly because the state is facing critical financial problems. Unofficial estimates run from $7 million to $10 million for the convention itself. The cost of the special election to select delegates is estimated to be over $2 million. If there were critical problems with our constitution, the cost of a convention should not be considered a deterrent. If there are no critical problems, but only the belief that there should be essentially automatic periodic reviews of the constitution, then the cost should be considered.
We believe that the state must first sort out our priorities on state programs and make the adjustments to function within expected revenues. Once that is done, it is the time to consider funding a constitutional convention.
Emotional Issues Could Dominate
League members and many of the people interviewed expressed the fear that emotional "hot button" issues -- sovereignty, same sex marriage, and gambling among others, -- could likely dominate the convention and polarize the delegates to the detriment of a rational review of other equally or more important issues. Certainly, our 1996 legislative session could have been more productive if so much time and energy had not been expended on some of these emotional issues.
The case of Arkansas, which held conventions in 1970 and 1980, illustrates the problems arising out of the domination of emotional issues. Voters there rejected the products of those two conventions because as Andre Henderson, author of "Selling a Constitution" explains in the December, 1995 edition of Governing, the conventions failed to a large degree because of "the role abortion, gambling and usury played in the convention debate". He quotes one of the delegates involved in the 1970 convention who said, "They addressed issues which were not critical to state government but which would inflame folks."3
There is precedence in Hawaii for our concern. In the preface to the official report of the 1978 convention, Mr. William Paty, convention chair, cites Initiative, Recall and Referendum as "a key issue pervading the convention". According to this report, a large and vocal group supported it, but the majority opposed it.
This was one of the causes for the schism which developed in the body and, he says, "There is no question that this division detracted from the work of the convention."
No one expects total unanimity on all issues. Hotly contested issues will always be present. But there is a distinction between merely controversial issues and emotional issues. For example, the issue of unicameralism versus bicameralism may be a controversial issue and would certainly invoke much debate, even heated debate, but the floor and public debate would he, to a great extent, driven by intellectual considerations of the merits and weaknesses of each system, except, maybe, on the part of some legislators and would-be legislators who see their seats threatened. On the other hand, it would be extremely difficult to take the emotionalism out of the same sex marriage issue. Some people fear that even the Bill of Rights might be eroded. Even though the voters must ratify the product, the fear remains. If too many emotional issues are present, schisms are created which prevent the rational discussion of even the less controversial issues. This would probably be a prescription for failure.
Hawaiian Sovereignty an Uncertainty
Another reason given by many who oppose a 1998 convention is the sovereignty issue. They feel that the Hawaiian community needs more time to reach consensus. If such consensus has implications for our constitution, then a Con Con may have to be held to consider any necessary changes. We believe that it makes sense to wait so that Hawaii's citizens have a clearer picture of what develops regarding sovereignty issues before having a convention.
The Legislature's Authority to Initiate Constitutional Amendments Should Be Used
It is important to point out that a Con Con is not the only means for amending our constitution. The legislature has the authority to propose amendments which then go before the voters for ratification. Citizens can ask legislators to introduce legislation proposing amendments. Citizens can lobby for their passage.
Ann Feder Lee's challenge to us in her December speech, in reference to the possible need to change the State/Counties relationship (the area which many people identify as in need of review) was, "How do we know that the legislature is totally unwilling to propose changes? Have we really tried?" In her concluding statements, she said, "I believe calling for a Con Con in some sense avoids the hard and serious work of mobilizing the public in favor of changes so that the legislature will act. Without such mobilization, no changes will come out of either the legislature or a constitutional convention."
Hawaii's legislature has, in fact, proposed a considerable number of constitutional amendments. Since statehood, such proposals have gone before the voters at almost every general election with many being ratified but others defeated. For example, voters have ratified the following legislatively proposed amendments: limiting the governor's line item veto power (in 1974); clarifying how constitutional convention proposals must be put to the voters (in 1980); granting the chief justice power to make temporary assignments of retired judges (1986); and increasing the amount of money that must he at issue before parties to a civil case are entitled to a jury trial (in 1988). During three legislative sessions, the LWV of Hawaii actively lobbied for the proposal of amendments which were necessary to make various aspects of Article IV, on reapportionment, conform to U.S. constitutional mandates. Once those amendments were placed on the ballot, the League carried out public campaigns urging voters to ratify them. Although they did not receive voter approval in 1988 or in 1990, they were successfully ratified in 1992.4
If the same energy and time that community groups invested in preparing for the '68 and the '78 conventions were used to study and prepare proposals for revisions and amendments to identify problem areas, mobilize public support, and lobby the legislature, we would he more likely to accomplish what we want a convention to do.
It needs to be pointed out as well that holding a convention is no guarantee that particular issues will actually end up as proposals placed before the voters. Past convention history makes clear that many ideas (both good and had) have died either because of lack of interest or opposition among delegates.
Legislature has Authority to Propose a Convention at Any Time
Although the question of holding a Con Con must be placed before voters at certain times, the legislature can place the issue on the ballot at any election. Should we feel the need for a Con Con before the question must go on the ballot again in the year 2006, the legislature has the authority to place the question on the ballot at any election before then. A mobilized public can pressure the legislature to do so.
The reason the drafters of the constitution included the provisions for the automatic placement of the question on the ballot every ten years was not that they anticipated the actual need for a review every ten years. Rather, it was put in "to provide assurance of opportunity by the People to adapt the constitution to new conditions within a reasonable time if the legislature fails to do so in the face of popular demand".5
Constitution should not be Cluttered with Detail
In State Constitutional Conventions: The Politics of the Revision Process in 7 States, the authors state, "The most frequently stated normative prescription for written constitutions are that; 1) they be relatively brief documents that set forth the structure of government, and 2) they state clearly the major limitations placed upon government."6
Governments are said to function more effectively under constitutions that contain a simple digest of fundamental principles rather than a series of long and detailed statutory provisions.
League's position on the state constitution portrays the document as "...a statement of the general rules within which sound laws can be adopted to meet changing social and economic conditions." It goes on to say, "The constitution should be the framework which sets forth the structure of government, clearly states the major limitations placed upon governments, and preserves rights to the people..."
When the people, through their constitution, demand a balanced budget, we are placing certain restrictions on state government spending.
When we set up the Council on Revenues to prepare revenue estimates for the state, we are guarding against manipulation of figures by the state government to allow for inflated budgets. When we constitutionally limit regular sessions to 60 days with provisions for extensions up to 15 days following certain procedures, or when we constitutionally set up definite procedures for the passage of bills, we prohibit the legislature itself from determining such matters. When we set up the Bill of Rights in our constitution, we are reserving certain rights to the people.
Many of the restrictions we place in the constitution are necessary to limit the powers of our government. However, there is always the danger of placing so many limitations and restrictions on government that it no longer has the power to be innovative and lacks the flexibility to adapt to changing conditions. When restrictions are placed in a constitution, the only way to change them is through the amendment process, which is difficult (as it ought to be).
Constitutional Law and Statutory Law
Excerpts from the Constitution of the State of Hawaii
Article II. Suffrage and Elections, Section 6. "Limitations
on campaign contributions to any political candidates or authorized political campaign organizations for such candidates, for any elective office within the State shall he provided by law."
Article IX. Public Health and Welfare, Section 1. "The State shall provide for the protection and promotion of the public health."
The first provision states that there will he limitations placed on campaign contributions, and it leaves it up to the legislature to set the limits. That is as it should be. Situations change, and monetary values change. If the details were set in the constitution, this would necessitate frequent amendments.
The second provision binds the state to safeguard public health, but the "how" is left up to the legislature.
These two examples begin to explain the difference between constitutional law and statutory law. Where a constitution speaks in broad principles, statutory law provides the details (e.g. how a constitutional provision is to be implemented). Our constitution does include provisions that could be left to statutory law. Each time a convention was held to revise it, we have added more details to our constitution. The temptation exists for various interest groups to place in the constitution statutory provisions that give them certain powers or that address their interests. Whether it be environmental groups, the gay community, labor, good government organizations, or governmental agencies, these forces will be pushing their agendas at any constitutional convention. As meritorious as these agendas may be, most of them should be addressed by statutory law. Most of these issues should he debated in the hearing rooms of the legislature and the House and Senate chambers rather than on the floor of a constitutional convention.
Professor Jon Van Dyke views the constitution as an organic document, still being developed.7 The League of Women Voters agrees that our constitution should not be considered a static document. We feel that the constitutional provision for periodic review is essential. In fact, League supported the 1968 and 1978 conventions, and alone and in coalition with other public interest groups, engaged in massive efforts to educate the public on constitutional issues, to stimulate individuals to run for delegate seats, to present information on the candidates to the public prior to the election, to prepare elected delegates for the convention, and to inform the public on the proposed amendments in preparation for the referendum on these proposals.
To summarize, we believe the following reasons dictate against a 1998 constitutional convention in Hawaii: the absence of fatal flaws in the existing document, the high cost at a time of financial uncertainty, the likelihood that emotional issues will dominate to the detriment of rational debate, the need to give the Hawaiian community time to reach consensus on the sovereignty issue, the need to make a concerted effort at utilizing the legislature for proposing amendments before turning to a convention to solve problems (i.e., a Con Con should be the last resort), and the need to avoid unnecessary detail being placed in the constitution.
In the year 2006, when the question must once again be placed on the ballot, or even before that should the need arise, the League of Women Voters may very well be in the vanguard calling for a constitutional review. But we believe that 1998 is not the right time.
1. Dr. Anne Feder Lee. Author of The Hawaii State Constitution: A Reference Guide, Greenwood Publishing Group, Inc., 88 Post Road West, Box 5007, Westport, CT 06881-5007 Former president, League of Women Voters of Hawaii. One of three panel speakers on Con Con at a Honolulu LWV membership meeting in December, 1995
2. Report of LWV Hawaii's Con Con Study Committee distributed to League members as an insert to the April, 1996 issue of Aloha Voter, Honolulu League's monthly membership newspaper.
3. Governing. The Magazine of States and Localities. Published monthly by Congressional Quarterly, Inc., 2300 N. St. NW. Suite 760, Washington D.C. 20037
4. To be ratified, amendments to the Constitution of the State of Hawaii need the approval of a majority of all the votes tallied upon the question in a general election, this majority constituting at least 50% of the total vote cast at the election. In effect, all blank ballots and void ballots are counted as "no" votes. Different requirements exist for ratification at â special election.
5. Quote from a speech by Dr. Norman Meller, Professor Emeritus, UH/Manoa, at a LWV Honolulu membership meeting, December, 1995.
6. State Constitutional Conventions: The Politics of the Revision Process in Seven States. Authors: Elmer E. Cornwell, Jr., Jay S. Goodman, Wayne R. Swanson. 1975. Praeger Publishers, I I I Fourth Ave. New York, N.Y. 10003
7. Professor Jon Van Dyke, Professor of Constitutional Law, UH/Manoa. Spoke at LWV Honolulu's membership meeting in December, 1995.