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League Monitors Family Court
Con Con '98? (insert)
Con Con '98?
THE ROLE OF STATE CONSTITUTIONS
The preface to State Constitutions in the Federal System prepared by the Advisory Commission on Intergovernmental Relations in 1989 says, "The American Federal system rests on two constitutional pillars: the 50 state constitutions and the United States Constitution. Metaphorically speaking, if one or the other pillar is cut down in size or raised too high, then the federal system becomes unbalanced. In many respects, this is what has happened to our federal system."
This report suggests that the U.S. Constitution is incomplete. "it is predicated on the continued existence and vitality of state constitutions. Unlike many constitutions in Europe and elsewhere in the world, the Constitution of the United States is silent, or mostly silent, on such fundamental constitutional matters as local government, finance, education and the structure of state and local government. These and other constitutional matters are left to the states to resolve, in keeping with their own needs, preferences and traditions. Thus the complete American constitution includes both the Constitution of the United States and the constitutions of the 50 states both as they are written and as they are implemented and interpreted by judges and other government officials."
The U.S. Constitution gives the federal government certain powers. It defines those powers that the states have relegated to the federal government.
State constitutions limit the powers of the state government. Quoting from the above report, "Generally speaking, because of the necessity to enunciate specific limitations on the otherwise virtually unlimited governmental power, state constitutions contain much more detail contain long articles on taxation and finance, two of the most important functions of any government. These provisions restrict state government taxing and spending in a range of ways that is unfamiliar in the federal government."
State constitutions allow for more citizen involvement in its drafting and amendments. They are easier to amend. It is suggested in this book that the stability of the U.S. Constitution has been made possible in part because of the capacity of the states to adopt new constitutions or to amend their cons to meet changing social economic conditions.
In State Constitutional Conventions: The Politics of the Revision Process in 7 States, the authors say, "The most frequently stated normative prescriptions for written constitutions are 1. they be relatively brief documents that set forth the structure of governments, and 2. they state clearly the major limitations placed upon government." Governments are said to function more effectively under constitutions that contain a simple digest of fundamental principals rather than a series of long and detailed statutory provisions.
Most of the original state constitutions were noted for their brevity, but through the years as the political, social, and economic changes took place, states have, through amendments and wholesale revision, ended up with rather lengthy documents cluttered with detail, whereas the federal constitution has been adapted to a changing society chiefly by a more liberal interpretation of the various provision.
According to many authors, one contributing factor is the erosion of the trust citizens have in their state governments. With perceived and real abuses of power by state officials, the citizens have resorted to adding more limitation on their powers.
Amendments Proposed by Legislature
The most common of the methods of constitutional change has been amendments proposed by legislatures. In the 1992-93 biennium, 201 of the 239 amendments submitted to voters by states nationwide have been legislative proposals. For various reasons cost, political power powers that be have opted for this piecemeal revision of the state charter.
Constitutional Conventions and Commissions
Constitutional conventions and commissions are usually thought of as institutions for accomplishing wholesale constitutional reform.
The constitutional convention is the oldest and most traditional method for extensive revision. According to the 1994 edition of the Council of State Government's Book of the States as of January 1, 1992, 233 conventions, including the 1982 convention in the District of Columbia- had been held in the U.S. No convention had been held since 1986 until the Louisiana Legislature called itself into session as a convention in 1992.
Commissions are generally appointed to review a state constitution and suggest revisions. In almost all states, their proposals go to the state legislatures which decide which proposals to present to the people for referenda. In Florida, the proposals of the commission go directly to the people for approval.
The popular initiative form of constitutional amendment, available in 18 states (Massachusetts and Mississippi has indirect initiative) has met with relatively little success at the polls. However, according to the Book of the States, during the 1991-93 biennium, the constitutional initiative generated 34 proposals nationwide, a record high as measured by biennium averages during the past 60 years. Of these, 21 were approved by voters, a 62% rate compared to the average rate of 33%.
SUMMARY OF HAWAII STATE CONSTITUTIONAL CONVENTIONS
Hawaii has had three constitutional conventions since our annexation.
The 1950 Constitutional Convention was held before Hawaii achieved statehood. According to Anne Feder Lee's The Hawaii State Convention - A Reference Guide published in 1993, "The underlying motivation for adopting this course of action was to remove all congressional doubts about Hawaii's qualifications for statehood. With a completed constitution ready to implement, Congress would be convinced by its advance adoption that the people of Hawaii accepted American values and were ready to be a part of the Union."
The 1950 Hawaii Constitution was praised in part for its brevity (14,000 words). According to Lee, The National Municipal League applauded it for setting "a new high standard in the writing of a modern state constitution by a convention: and for resisting "virtually all temptations and pressures to include the kind of restrictive and legislative details that has so encumbered most of the constitutions of the older states."
In 1964, the U.S. Supreme Court ruled in "Reynold v Sims" that both chambers of a state legislature must be apportioned on the one person-one vote principle. When the Hawaii State Legislature could not come up with a satisfactory apportionment plan, the Federal District Court ordered the Legislature to place a question of calling a constitutional convention on the 1966 ballot so that a convention could propose a permanent districting plan. This resulted in the convening of the '68 convention.
The 1978 convention was held with 74°%6 of the voters approving the holding of a convention in 1978 versus 26% opposing. The "question" had been placed on the ballot in the 1976 election in compliance with a provision in the Hawaii constitution which mandates the question every 10 years. No one issue demanded attention --just a general dissatisfaction with government. There was a general consensus that there should be a grassroots involvement and only 2 incumbents and 2 former legislators ran and were elected. Citizen groups, including the League of Women Voters, were very much involved in preparing the citizenry for this convention and in identifying the issues that needed to be addressed.
In 1986 when the "question" was placed on the ballot, over 50% of the voters rejected a convention.
Quoting from Lee's book, "Starting as a relatively short, simple, and highly praised document, Hawaii's constitution has been longer and more detailed. The Statehood Constitution contained about 14,000 words, making it one of the shorter state constitutions. The current document stands at around 17,500 words, placing it midrange among state constitutions.
In defense of this greater girth, many of the amendments have added to the rights of Hawaii's citizens and have contributed to making the constitution fairly progressive. With respect to its provision relating to ethnic Hawaiians and their culture, it stands out as unique.
Many of the amendments, particularly those authored by the 1978 convention, introduced significant new responsibilities to be undertaken by government. Yet the Hawaii constitution still succeeds in avoiding much of the excessive detail found in some of the other state constitutions."
'98 CON CON?
At Honolulu League's Planning Meeting on December 9, Dr. Anne Feder Lee, Dr. Norman Meller, and Professor Jon Van Dyke addressed the pros and cons of having a constitutional convention in 1978. Professor Van Dyke's talk dealt with a whole series of issues that might be addressed by a constitutional convention, and we have included them within the interview reports for the different articles.
MELLER - ?
If you are going to consider the frame for considering whether there should be a Con Con, do not propose to consider all the things wrong with Hawaii's constitution and require amendment. I am sure most everyone has something he/she would like to see changed.
There are four ways of changing a constitution, all of which have been recognized in the United States:
So the constitutional convention committee which proposed that the Hawaii constitution incorporate a provision for automatic consideration of calling a convention did so "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." Hawaii is not alone in this; 14 states have a comparable provision in their constitution. The median is 20 years for the question having to automatically go on the ballot compared to Hawaii's 10 years.
This changes the nature of the first question we should ask in determining whether we should hold another constitutional convention: Are there conditions to which the constitution should be adapted and regarding which the legislature has failed to act?
Let me suggest a few:
There is little chance that the legislature will attend to the latter two; and there is even less chance that the legislature is even capable of addressing the preceding three without there first being extensive preparatory study, narrowing proposals before any action may be taken.
Of course, the same holds true for calling a Con Con and expecting it to successfully address them without extensive preparatory work.
Granted that its actions are only recommendatory, may not the constitutional revision commission - rather than the constitutional convention - offer greater promise for periodically undertaking fundamental study of the ills of the body politic and then proposing constitutional changes to head off catastrophic conflict before it occurs? At least, the three state conventions which have met in Hawaii lend support to that conclusion.
LEE - NO
We should only have Con Con if there are "Fatal Flaws" in the existing document. By fatal flaws 1 mean critical constitutional shortcomings that result in very serious problems for governance of our state. I see some stupid/silly provisions that could be changed, but they are not fatal flaws.
Our statehood constitution was much praised for its simplicity. There were no such praises for the 1968 nor the 1978 constitutions. Why? Because they added much clutter and that is always a danger.
We need to weigh costs and benefits. In 1978 there were 102 delegates. (63 delegates in 1950, 82 in 1968) The legislature could increase the number for 1998; it probably would not decrease. The '78 convention cost $2 million. The figure suggested now is $7 million. I think this is much too high for any benefits we may reap for having a convention, particularly since I see no fatal flaws.
Any reason given for the need for a Con Con must be evaluated critically. It is not enough for a few political pundits to write columns citing reasons we need a Con Con. Such writers should give us some analyses in depth which they have failed to do.
I have devised a test for evaluating the reasons given to support having a Con Con.
Using this test, I want to critically evaluate six "problems " that have been identified in public so far on this issue.
As you can see, all these issues fail one or more parts of my test.
In conclusion, public support is the key to making any changes occur. At the present time, there does not appear to be a ground swell from the community to revisit any of the specific areas in the constitution. Many, of the issues can be handled through the Legislature if the public sentiment is strong enough. Because Con Con cons are not convened to address only specific issues, there is a danger that good provisions now existing may be eroded or diluted, causing more harm than good.
About 150 letters were sent to government, business and community leaders explaining League's project and alerting them to expect calls from committee members requesting interviews. Some declined to be interviewed, some could not be reached, and some were unavailable because of work demands. We had a few, who in lieu of an interview, wrote in extensive remarks on their views.
We succeeded in interviewing over 90 people. Some were interviewed by members of, more than one committee. While most of them confined their remarks to the one particular article for which they were interviewed, others had much to say about issues in other areas of the constitution.
68 of those interviewed were opposed to having a Con Con, 18 were in favor, and the rest were neutral or ambivalent on the question. Most of the nos were based on the feeling that no amendments were needed for that section for which they were interviewed. Though they were opposed to the convening of a convention, many did list possible amendments to their respective sections.
Some of the general reasons for opposing a convention were:
The last reason was expressed mostly for the areas of Hawaiian affairs. natural resources, ethics, campaign reform and the Bill of Rights.
Some of the reasons for favoring a convention were:
CON CON INTERVIEWS
Article I. Bill of Rights - 8 people interviewed
NO - 8. REASONS:
Equal rights provisions need to be retained Right to Privacy section may be weakened
Climate is such now that there may be a move to limit equality and curtail freedom
Attention needs to be focused on improving economic condition of state
YES - 1. REASONS:
Bill of Rights should include right to health care and housing
Article III. Legislature - 5 people interviewed, 1 no position
NO - 4. REASONS:
This Con Con could be negative and destructive.
Do we need a bicameral legislature?
Article V. Executive - 3 people interviewed, 1 no position
NO - 1. REASONS:
Article does not need amendment
YES - 1.
There are issues that Legislature will not (cannot) address.
Does the Governor have too much power relative to the Legislature?
Article VI. Judiciary - 10 people interviewed
NO - 7. REASONS:
Needed changes can come through the LegislatureYES - 3. REASONS:
Encourages citizen participation and broad discussion of issues.
Should we retain mandatory retirement age of 70 foc judges?
Article VII. Taxation and Finance - 6 people interviewed
NO - 5. REASONS:
Amendment to section not needed.
YES - 3. REASONS:
We need to address 2 urgent problems. 1. How to keep our children from having to leave our state, 2. How to keep foreigners from buying up Hawaii. We could raise property taxes and devise some means of rebating it for local residents through our income taxes, except the separation of the two tax systems between state and counties presents problems. Feels that giving property taxes to counties is a good concern for local government tax base but too simplistic. Good in the ideal, but bad in the result.
Taxing of pensions. This will never be adopted by the Legislature.
Article VIII. Local Government - 11 people interviewed (includes Hawaii County) 1 no opinion
NO - 8. REASONS:
No need to amend section. Seems nothing wrong with philosophical principles of this section. Does not believe the constitution should be used to override the State Legislature.
YES - 2. REASONS:
State/County relationship needs review. Nothing will happen unless through a convention. Relations will remain strained.
At the '78 Con Con, the issue of more autonomy for major neighborhoods. e.g.. Kailua, was discussed. Does this still have merit?
Article IX. Public Health & Welfare - 17 people Interviewed
NO - 14. REASONS:
Article is clear, basic, sufficiently flexible, and broad enough to meet any need.
YES - 3. REASONS:
We need to establish a Department of Environment to consolidate all environmental programs.
Eliminate all sections of this article except the first which reads, "The State shall provide for the protection and promotion of the public health." The rest are redundant.
Article X. Education - 6 people interviewed, 1 no position
NO - 4. REASONS:
Issue is not changing the section but fully implementing the intent of Article X that the university is a constitutionally independent corporation, not an administrative or executive agency.
YES - 2. REASONS:
Great need to clarify roles of Executive, Legislature, Board of Education of Department of Education in this area, the Legislature will not do it.
The underlying assumptions of the phrase "nor shall public funds be appropriated for the support and benefit of any sectarian or private educational institution.." needs to be discussed. Are these assumptions still valid in today's society?
Article XI. Natural Resources - 18 people interviewed, I no opinion
NO - 15. REASONS:
Section adequately addresses issue of natural resources well balanced.
Article XII, Hawaiian Affairs - 9 people interviewed, 1 no position
NO - 5. REASONS:
Fear of losing some of the gains made in '78 Con Con
YES - 3. REASONS:
Times change; we need to review important documents to adjust to changing circumstances.
Government need to clarify the role of the State in relation to special groups like the Hawaiian.
Article XIV. Ethics - 4 people interviewed
NO - 4. REASONS:
The Ethics section is broad and encompassing and should remain as is.
GENERAL COMMENTS AND QUESTIONS
Citizens need education on what constitutes constitutional law and statutory law. The LWV could provide a valuable service by addressing this subject.
Delegates to Con Con need to be educated before the convention. Too many arrive unprepared.
All legislators and the public should understand the genesis of the constitution and the importance of the separation of the three branches of government. These days, there is a blending of the responsibilities which is having a negative effect.
We might do well to consider some of the procedures used to conduct the business of the convention. I am not sure Robert's Rules and/or legislative style practices will get us the best results. Some sort of facilitated consensus-oriented process might be considered.
Does a convention have to meet continuously?
Does it have to be structured along the conventional model?
Should we have study groups for each section as recommended by Dr. Meller?
Note: This definitely was not a scientific survey. People to interview were not selected randomly to provide a proper cross-section, nor for proper balance (we had no idea what each person's views would be).
Much of it took place when many of those interviewed were busy preparing for the opening of the Legislature and during the Legislative session. All of those we did manage to see or talk to were most gracious about taking time from their busy schedules to talk to us. There were a few who wrote to us at some length about their views. To all of them, we are most grateful.
COSTS OF A CONVENTION
We were not able to get an official estimate of the cost of a '98 convention, but estimates range from $7 million to $10 million.
'78 CON CON
approved June 27, 1977 lists the following appropriations $1,500,000 to the Office of Governor for defraying pre-session, session, and post session expenses including payment of compensation to delegates, etc.
the Supplementary Appropriations Act of 1978 provided another $1,000,000 for the convention, about $200,000 of which was spent for citizen education by the LRB
SPECIAL ELECTION COST
State Elections Officer Dwayne Yoshina supplied us with a detailed projection of costs for a special election that would be necessary to elect delegates to the convention.
Projected cost of a polling site election is $2,123,474 based on utilization of every existing polling place statewide. Cost savings might be had by consolidating smaller precincts into one polling place but this would not amount to much.
Although state law does not allow for all-mail elections, the projected cost of an all-mail election is $1,428,872.
The total delegate election costs for the 1978 Con Con was $485,599
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